ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20170003086 APPLICANT REQUESTS: upgrade of his bad conduct discharge to general under honorable conditions discharge. 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 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 that he is requesting that his discharge be upgraded to a general as he is in severe need of medical care. His justification for the reason of his discharge was due to making the wrong decisions with the company he was in. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 25 June 1979. b. He accepted nonjudicial punishment on/for: * on 11 March 1980, wrongfully having possession of marijuana, on 12 August 1980, the punishment of forfeiture of $104 was set aside and all rights and privileges, and property that were affected were restored * on 11 September 1981, failing to go to his appointed place of duty, his punishment included reduction to private first class/E-3 * on 26 October 1981, disobeying a lawful order of a noncommissioned officer and being disrespectful to an noncommissioned officer, his punishment included reduction to private/E-2 which was suspended until 31 January 1982 c. On 8 January 1982, the applicant’s battalion commander approved a bar to reenlistment against the applicant. d. General Court-Martial Order Number 26, on 8 June 1982, shows he was convicted by a general court-martial of one specification of wrongfully selling 19 dosage units, more or less, of Lysergic Acid Diethylamide, a controlled substance, and one specification of wrongfully selling 26 units, more or less of Lysergic Acid Diethylamide, a controlled substance, and one specification of without authority, absent himself from his unit. e. The court sentenced him to reduction to PVT/E-1, forfeiture of all pay and allowanced, to be confined at hard labor for one year and to be discharged from the service with a bad conduct discharge. f. General Court-Martial Order Number 26, dated 1 July 1982, shows the convening authority approved the sentence of bad conduct discharge, confinement at hard labor for eleven months, and forfeiture of all pay and allowances, and reduction to the grade of PVT/E-1. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. g. General Court-Martial Order Number, dated 31 August 1982, shows the appellate authority rendered a decision that states the court having found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved such findings of guilty and the sentence are affirmed. h. General Court-Martial Order Number 26, dated 10 March 1983, affirmed the sentence pursuant to Article 66. The provisions of Article 71(c) having been complied with, the approved sentence will be duly executed. i. DD Form 458 (Charge Sheet), shows court-martial charges were preferred on the applicant on 6 July 1982 for one specification of being absent without leave (AWOL) from 16 June 1982 to 29 August 1982. j. DD Form 458, court-martial charges were preferred on the applicant on 20 September 1984 for one specification of being AWOL from 18 September 1984 to 26 November 1984. k. DD Form 458, court-martial charges were preferred on the applicant on 5 December 1984 for one specification of being AWOL from 3 December 1984 to 2 April 1985. l. DD form 458, court-martial charges were preferred on the applicant on 9 January 1986 for one specification of being AWOL from 30 December 1984 to 18 September 1986. m. The applicant was discharged on 1 June 1987 in the rank/grade of PVT/E-1 as a result of court-martial conviction under separation authority Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3 section IV, with a bad conduct discharge. He completed 2 years, 10 months, and 27 days of active military service with lost time: * 16 March 1982 to 18 March 1982 * 25 April 1982 to 4 May 1982 * 5 May 1982 to 15 June 1982 * 16 June 1982 to 24 June 1982 * 26 June 1982 to 25 November 1984 * 3 December 1984 to 19 September 1986 * 19 September 1986 – 7 May 1987 j. His DD Form 214 also shows he was awarded or authorized: * Army Service Ribbon * Marksmanship Qualification Badge with Rifle Bar (M-16) * Qualification Badge with Grenade Bar 4. By regulation 635-200, chapter 3, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a special or a general court-martial. The appellate review must be completed and the affirmed sentence 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon a short term of service prior to a lengthy pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel: a. Paragraph 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has not 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. b. Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 13-7c (Under Other Than Honorable Conditions) states that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service. d. Chapter 3 section IV, of that regulation states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of the Military Department. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections 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, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. ABCMR Record of Proceedings (cont) AR20170003086 4 1