IN THE CASE OF: BOARD DATE: 5 August 2021 DOCKET NUMBER: AR20210009429 APPLICANT REQUESTS: in effect, an upgrade of his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 was "accused of drugs." He never at any time had drugs on his person. He was surrounded by them. He did not do any drugs nor did he handle them. He always maxed his physical training test with a 300. He was a dedicated Solider for three years. His wife also worked on post. He wants an upgrade of his discharge for benefits because he is low on income. If the Board reviews his medical records, they will see he had no drugs in his system. 3. On 2 March 1977, the applicant, at the age of 21, enlisted in the U.S. Army Reserve (USAR) delayed entry program (DEP) for a period of 6 years. On 4 March 1977, he was discharged from the USAR DEP and entered active duty for a period of 3 years. He completed a medical examination upon his enlistment and was qualified for entry into the Regular Army. 4. The applicant's DA Form 2-1 (Personnel Qualification Record) shows he entered basic training on 11 March 1977 and advanced individual training (AIT) for military occupational specialty (MOS) 91Q (Pharmacy Specialist) on 7 May 1977 and entered AIT for MOS 11C (Indirect Fire Infantryman) on 16 July 1977. Upon completion of AIT, he was stationed in Germany. 5. On 1 December 1977, the applicant was promoted to the rank of Private First Class (PFC). On 4 September 1979, the applicant was awarded the Driver's Badge for his period of service from August 1978 to August 1979 for one year of accident free driving. 6. An Insert Sheet to DA Form 2-1 (Record of Court-Martial Conviction) shows the applicant was tried by Special Court-Martial (SPCM) on 13 November 1979 for wrongfully possessing .03 grams of heroin and wrongfully transferring and selling .03 grams of heroin. His sentence included reduction to the grade of Private/E1 (PVT) and to be discharged from the service with a bad conduct discharge. 7. On 12 March 1980, the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL). On 10 April 1980, his status was changed from AWOL to dropped from rolls (DFR). On 22 April 1980, his status was changed from DFR to PDY. 8. On 5 June 1980, SPCM Order 28 was published stating the sentence to reduction and to be discharged from the service with a bad-conduct discharge had been affirmed and the sentence would be duly executed. 9. On 25 June 1980, the applicant's duty status was changed from PDY to AWOL. On 26 June 1980 his status was changed from AWOL to DFR. On 9 June 1981, his status was changed from DFR to PDY. On 12 June 1981, he submitted a DA Form 31 (Request and Authority for Leave) to go on excess leave from 12 June 1981 for an indefinite period of time. 10. On 31 June 1981, he was discharged from the Regular Army. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial and received a bad conduct discharge. He had served 3 years, 4 months, and 3 days of active service this period with lost time from 12 March 1980 to 21 April 1980 and from 25 June 1980 to 8 June 1981. 11. On 24 March 1982, a Court-Martial Order Correcting Certificate was completed showing Specification 2 of the charge (wrongfully transferring .03 grams of heroin) had been dismissed by the military judge prior to findings. 12. On 7 February 1982, the applicant petitioned the Army Discharge Review Board (ADRB) to request an upgraded character of service. He argued, in effect: a. One man that was caught with drugs said the applicant had sold them to him. That was impossible. He only saw the man because they were at the same post, but they never socialized. He never touched the drug he was convicted of possessing nor any other drug. He was medically checked for drugs in his system. There were insufficient documents to prove he had possessed or sold drugs. It was only because he was where the other Soldier was. The Soldier wanted to buy and the applicant was showing the commander the information and the Soldier decided to blame him. b. The applicant was a sportsman and had very high scores on his physical training test at all times. 13. On 17 August 1982, the ADRB published a letter to the applicant stating, after careful consideration of his military records and all other available evidence, they determined the applicant was properly discharged and denied his request. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. 15. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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 :X :X :X 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, corrections of any military records of the Secretary's Department may extend only to those actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. A general discharge was a separation from the Army under honorable conditions. When authorized, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A Soldier could only receive a bad conduct discharge pursuant to the approved sentence of a general or special court-martial, and then only after proper authority had ordered the discharge's execution following the completion of an appellate review. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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. 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) AR20210009429 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1