IN THE CASE OF: BOARD DATE: 18 January 2022 DOCKET NUMBER: AR20210008241 APPLICANT REQUESTS: through his Member of Congress, an upgrade of his bad conduct discharge (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record, Under the Provisions of Title 10, U.S. Code (USC), Section 1552), dated 17 January 2021 * Letter from his Member of Congress, addressed to the Chief Legislative Liaison, U.S. Department of the Army, dated 20 April 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he joined the military at 17 years old. He was a highly impressionable young man trying to fit in. He fell into the wrong crowd at Fort Ord, California and was trying to impress the wrong people. He fell into a trap with cocaine and feels that if the military would have had a means of dealing with drug problems back then, there would have been an entirely different outcome. The judge in his court- martial case said if he remained clean and stayed out of trouble, the discharge could be upgraded. He has done this now for 30 years. 3. The applicant enlisted in the Regular Army on 19 June 1985. Upon completion of initial entry training, he was awarded military occupational specialty 62J (Utility Tractor Operator). He was assigned to a unit located at Fort Ord, California. 4. DA Forma 4187 (Personnel Action) show the applicant’s duty status was changed from Present for Duty (PDY) to Absent Without Leave (AWOL) on 8 December 1986, and from AWOL to PDY on 10 December 1986. 5. A DA Form 4187 shows the applicant’s duty status was changed from PDY to Confined Military Authorities (CMA) on 30 March 1987. 6. General Court-Martial Order Number 30, issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California on 6 May 1987, shows the applicant appeared before a general court-martial on or about 6 May 1987, at Fort Ord, California. a. He pled guilty and was found guilty of three Specifications of violating Article 112a of the Uniform Code of Military Justice (UCMJ). Specifically, he was found guilty of: * wrongfully distributing .298 grams of cocaine on 18 November 1986 * wrongfully distributing .5 grams of cocaine on 2 December 1986 * wrongfully using cocaine between 21 September 1986 and 20 October 1986 b. The court sentenced him to be confined for 14 months, forfeiture of all pay and allowances, reduction to the rank/grade of private/E-1, and to be separated from service with a BCD. c. The convening authority approved only so much of the sentence as provides for confinement for 11 months, forfeiture of all pay and allowances, reduction to the rank/grade of private/E-1, and a BCD on 6 May 1987 and, except for that portion pertaining to his separation from service with a BCD, was ordered duly executed. The record of trial was forwarded for appellate review. 7. Orders 87-779, issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California on 6 May 1987, show the applicant was transferred from his unit to the United States Army Correctional Activity (USACA) located at Fort Riley, Kansas for further confinement, effective 12 May 1987. 8. The United States Army Court of Military Review considered the applicant’s entire record, including consideration of the issue personally specified by the appellant, and upheld the findings of guilty and sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence were affirmed on 13 July 1987. 9. General Court-Martial Order Number 37, issued by USACA, Fort Riley, Kansas on 26 January 1988, noted that the sentence had been finally affirmed and ordered the BCD duly executed. 10. The applicant was discharged on 8 February 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial, with his service characterized as Bad Conduct. His DD Form 214 further shows he was discharged in the lowest enlisted grade. 11. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided insufficient evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. Additionally, applicants may be represented by counsel at their own expense. 3. Army Regulation 27-10 (Military Justice) provides that reduction to the lowest enlisted grade is automatic when an approved sentence includes a BCD. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 3 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 6. The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008241 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEDING 1