IN THE CASE OF: BOARD DATE: 26 September 2018 DOCKET NUMBER: AR20160009487 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 September 2018 DOCKET NUMBER: AR20160009487 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. _____________x____________ CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 26 September 2018 DOCKET NUMBER: AR20160009487 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests his bad conduct discharge (BCD) be upgraded to a general discharge. 2. The applicant states: a. With the support of his foster parent he enlisted at age 17. He was excited about entering the military and enlisted with great expectations. Being young and impressionable, he fell victim to peer pressure from of some of his fellow Soldiers. He made a bad choice, one that cost him his military career and caused him to let down his family. b. Prior to entry onto active duty, he was not a user of illegal drugs of any kind. It was only after entering active service and suffered great hardships that he become a user of and an addicted to illegal drugs. It was widely known and accepted for Soldiers in Germany to use drugs. The military offered neither counseling nor medical assistance for his addiction. Like many former service members, he was compelled to sell drugs to help support his addiction. c. He volunteered to serve his country and was prepared to make the ultimate sacrifice if needed, but due to becoming addicted while serving and having not received sufficient care, he was unable to fulfill his obligation of military service to his country. d. It was only after having been discharged that he became aware that drug addiction is an illness which lasts a lifetime. Since his discharge, he has worked faithfully to overcome his addiction and continue his daily walk of life as the best father, husband, Christian and citizen possible. e. Recently, his son came to him and asked, "Dad, if both former President Bush and even President Obama could admit to having used drugs and alcohol, why can't the military forgive you and help you to be better? " His son's question inspired him to make this humble plea for consideration to upgrade his discharge. 3. The applicant provides no supporting evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 27 June 1974. He completed initial entry training, after which he was assigned to duty in Germany. 3. Special Court-Martial Order Number 10, issued by Headquarters, 3rd Armored Division, on 20 February 1975, shows that, in accordance with his guilty plea, a special court-martial found him guilty of two specifications of possession of heroin and one specification of possession of hashish. His sentence was reduction to private E-1, forfeiture of $229.00 per month for 6 months, confinement for 5 months, and a BCD. 4. The convening authority approved the sentence with the exception that confinement in excess of 90 days be suspended for 6 months. 5. On 9 June 1975 the U. S. Army Court of Military Review affirmed the findings of guilt and the sentence. 6. Special Court-Martial Order Number 315, issued by Headquarters, U. S. Disciplinary Barracks, on 9 June 1975, shows that, his sentence having been affirmed, the BCD was to be executed. 7. On 27 June 1975, the applicant was discharged with a BCD. His DD Form 214 (Report of Separation from Active Duty) shows his service was characterized as under other than honorable conditions (a category that included the BCD at that time) and he was issued a BCD Certificate. He completed 1 year, 1 month, and 24 days of net active service with 5 months and 9 days of foreign service. 8. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit. REFERENCES: 1. The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction. The Board can only review the sentence for clemency. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 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. DISCUSSION: 1. The applicant’s trial by court-martial was conducted in accordance with law and regulations applicable at the time. His sentence was affirmed after higher-level review, and his sentence to a BCD was properly executed. 2. The applicant provided statements in support of his application that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009487 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009487 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2