ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 March 2019 DOCKET NUMBER: AR20160017094 APPLICANT REQUESTS: The applicant requests his bad conduct discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) 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: a. He was not represented well regarding his case. They did not have good witnesses against him and it was the witness’ word against his. The witness was white and he is black. At the time, no one would respond to prejudicial acts. The military was his career and he lost it due to racial prejudice. The man who said he committed the offenses was already charged with an offense. They told him to find someone who could help his time. He and the witness did not get along with each other because the applicant told the witness he was a racist. The applicant was the fall guy, him being white and the applicant being black and moving up in the Army. b. If the applicant was what they claimed him to be, he would have a long civilian record. All his superiors in the military always had nothing but good things to say about him. He strived hard to be the best Soldier because he wanted to be a career Soldier. He is now asking to be judged fairly. 3. On 16 June 1972, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years. On 17 March 1974 for his discharged for immediate reenlistment. On 18 March 1974, he reenlisted for a term of 6 years. 4. 31 October 1975, he was convicted by special court-martial for one specification of wrongfully selling marijuana and one specification of wrongfully possessing one ounce more or less of marijuana. He was sentenced to be reduced to private one (PV1)/E-1, forfeiture of pay, to be confined at hard labor for four months, and to be discharged with a bad conduct discharge. On 6 January 1976, the sentence was approved by the convening authority. 5. On 28 May 1976, the U.S. Army Court of Military Review (USACMR) affirmed the findings and the sentence. On 8 June 1976, the USACMR Decision was served on the applicant. The applicant petitioned the U.S. Court of Military Appeals to review his case but his request was denied. On 23 August 1976, his sentence was ordered to be executed. 6. On 29 September 1976, the applicant was discharged with a bad conduct discharge. His service was characterized as under other than honorable conditions. He completed 2 years, 2 months, and 7 days of net active service this period, and 3 years, 11 months, and 11 days of total active service. His DD Form 214 (Report of Separation from Active Duty) shows: * He was awarded and authorized the Army Good Conduct Medal and the Sharpshooter Marksmanship Qualification Badge with the Rifle Bar * Lost time: 128 days 7. His record is void of any evidence showing he was awarded any personal decorations and neither the applicant nor his available records identify special circumstances. 8. The applicant states he was not represented well regarding his case because they did not have good witnesses against him and it was the witness’ word against his. The witness was white and he is black and he lost his career due to racial prejudice. His record shows he enlisted at the age of 17 and he was convicted by special court-martial for wrongfully selling and wrongfully possessing marijuana. 9. Army Regulation 635-200 states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction but is empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 11. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The characterization is appropriate resulting from the misconduct leading to the BCD. 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. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s record shows his DD Form 214 (Report of Separation from Active Duty), for the period ending 29 September 1976, is missing important entries that affect his eligibility for post-service benefits. As a result, ament the DD form 214 by adding the following entries to item 27 (Remarks): "SOLIDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 720616 TO 740317 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 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. 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. 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. 3. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant.