ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 April 2019 DOCKET NUMBER: AR20160013731 APPLICANT REQUESTS: 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 falsely accused of selling a small amount of heroin in Germany. He did not get a fair trial and he was imprisoned. 3. Review of the applicant's service record shows: a. He entered active duty on 12 August 1977 and held military occupational specialty 76W (Petroleum Supply Specialist). b. On 1 November 1978, he accepted nonjudicial punishment for behaving in a disrespectful manner toward a commissioned officer by using threatening language and profanity toward him. c. On 14 July 1980, he was convicted by a general court-martial of one specification each of wrongfully possessing .02 grams, more or less, of heroin and wrongfully distributing .02 grams, more or less, of heroin. The court sentenced him to a forfeiture of all pay and allowances, confinement at hard labor for 11 months, and a bad conduct discharge. On 26 August 1980, he was reduced to private E-1. d. On 26 August 1980, the convening authority approved the sentence as adjudged and except for the bad discharge, he ordered the sentence executed. He also ordered the record of trial is forwarded to The Judge Advocate General of the Army for appellate review. e. On 13 February 1981, the U.S. Court of Military Review affirmed the approved findings of guilty and the sentence. f. On 26 February 1981, the applicant acknowledged notification and petitioned for grant of a review by the U.S. Court of Military Appeals. g. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 333, dated 22 May 1981, shows the findings and sentence had been approved by the appellate review and the sentence to confinement had been served, ordered the bad conduct discharge executed. h. The applicant's DD Form 214 shows he was discharged on 15 June 1981, under the provisions of Chapter 11 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of court-martial and furnished a Bad Conduct Discharge Certificate. The applicant's DD Form 214 also shows he had served 3 years, 1 month, and 21 days of active service and he had 256 days of lost time. 4. Army Regulation 635-200, in effect at the time, provided that a member will be given a bad conduct discharge 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. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the short term of military service completed prior to multiple occasions of misconduct starting, the Board concluded that the characterization of service given at the time of discharge was appropriate. 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. SIGNATURE: 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 Army Board for Correction of Military Records (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 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 of that regulation provided, in pertinent part, that a member will be given a bad conduct discharge 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. b. Paragraph 3-7a, provides that 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. c. Paragraph 3-7b, provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 3. Title 10 United States Code, section 1552 governs operations of the Army Board for Correction of Military Records (ABCMR). Section f of this provision of law essentially states that the authority of the ABCMR only extends to correction of a record. 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. 4. 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 based on 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. ABCMR Record of Proceedings (cont) AR20160013731 3 1