ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 February 2019  

	DOCKET NUMBER:  AR20160015412


APPLICANT REQUESTS:  The applicant requests his bad conduct discharge be upgraded to a general discharge under honorable conditions.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge) 
* 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, in effect, it has been more than 15 years since he was court-martialed and discharged.  He was a young kid then and now he is a member of a church, his community, and a husband to a disabled spouse.  He has held a good job for many years.  He has had a surgery and he feels that the punishment does not fit the offense anymore.

3.  On 30 May 1996, the applicant enlisted in the Regular Army.  

4.  On 22 September 1998, before a general court-martial he pled guilty and was found guilty of wrongfully distributing 1 ounce of marijuana, on or about 23 April 1998.  His sentence consisted of:

* reduction to the grade of private E-1
* forfeiture of all pay and allowances
* confinement for 5 months
* a bad conduct discharge 

5.  On 24 December 1998, the convening authority approved only so much of the sentence as provides for reduction to the grade of private E-1, forfeiture of all pay and allowances, confinement for 3 months, and a bad conduct discharge.  All except for the bad conduct discharge would be executed unless determined by a court-martial conviction.    

6.   On 16 July 2002, the applicant's discharge was affirmed, ordered and a bad conduct discharge was executed. 

7.  On 13 November 2002 he was discharged with a bad conduct discharge as a result of his court-martial conviction. He completed 6 years, 3 months and 1 day of net active service.  His DD Form 214 shows he was awarded the Army Achievement Medal and item 18 (Remarks) shows:

* excess leave (1412 days) from 2 January 1999 to 13 November 2002
* “member has not completed first full term of service”

8.  Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

9.  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.

10.  The applicant states he was young at the time of his charge.  He is now a member of his church and husband to his disabled wife.  He has had a good job for many years and doesn't feel the punishment fits anymore.  His record shows, at the age of 21, he was convicted by a court-martial for distributing one ounce of marijuana and the Army took over three and half years to affirm his sentence.  

11.  In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

1.  The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance.  The Board considered how the applicant states he is now a member of his church, husband to his disabled wife, held a good job for many years and doesn't feel his punishment fits anymore.  No further information was provided to support equity, injustice, or clemency.
2.  The applicant was convicted by a court-martial for distributing one ounce of marijuana.  His misconduct impacted more than himself, but also impacted others.  The Army took over three and half years to affirm his sentence.  The Board finds his separation was both proper and equitable; though unfortunately the process can take that long length of time.  Consequently, the greater weight of evidence, even when applying liberal consideration standards, does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200.  The Board finds the applicant has not demonstrated by a preponderance of evidence that an upgrade to his discharge is warranted.     

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 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.

     a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

     b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

4.  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.

5.  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.  

     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, 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.  

     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.

ABCMR Record of Proceedings (cont)	 AR20160015412
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