ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2019 DOCKET NUMBER: AR20170003233 APPLICANT REQUESTS: in effect, reconsideration of his previous request for an upgrade to his characterization of service from a bad conduct discharge (BCD) to a general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Self-Authored Statement * Non-Commissioned Officer Academy Diploma * Three Certificates of Achievement * Letter of Commendation * Two Certificates of Training * Certificate of Accomplishment * Department of Defense Memorandum * Case Management Division Letter to Applicant * Request for Redacted Criminal Investigation Division/Military Police Report * United States Army Law Enforcement Report FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010871 on 13 February 2008. 2. The applicant provided new evidence and arguments not previously considered by the Board that warrants consideration at this time. 3. The applicant states, in effect: a. In 1981, he was stationed in Germany and after a few months, he was asked to go to the noncommissioned officer (NCO) Academy by his platoon sergeant given his qualification as a specialist four (SP4). b. In July 1982, after graduation from the NCO Academy, he participated in a field exercise, in which he received a Certificate for the “best gunner”. When he finally received some time off, he went to a place where military and civilian personnel hung out to meet. While there, he was approached by a German woman who asked him if wanted some hashish, which he reply, no. However, she was persistent and his manhood got in the way of his judgement, so he told her where she could probably get some hash. She tried to give him money to buy the hash, but he refused and bought a small piece of hash for 20 dollars. c. Later, he was arrested on base by the CID, was given a SPCM, and was found guilty. He states, his military attorney was barely there to help him with his case, and that his punishment back then did not fit the offense. All of his character witnesses were not present, he was never in trouble before he enlisted, and never got into trouble after he was discharged. d. He is currently 61 years old, and would like nothing better than having his discharge upgraded. He has been married for 29 years now, owns a home, and has children and grandchildren. 4. The applicant provides the following documents: a. Letter of Commendation, which highlights the applicant’s outstanding performance during a field exercise. b. Diploma, Certificates of Achievement, Training, and a Certificate of Accomplishment showing his military accomplishments and achievements. 5. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 January 1981. b. He served overseas in Germany from 14 November 1981 to 14 January 1983. c. On 12 January 1983, he was convicted by Special Court-Martial (SPCM) Order Number 62 for one specification of wrongfully having in his possession 1 gram, more or less of marijuana in the hashish form; one specification of wrongfully transferring 1 gram, more or less, of marijuana in the hashish form; and one specification of wrongfully selling 1 gram, more or less, of marijuana in the hashish form on 2 September 1982. He was found guilty and sentenced to a reduction to pay grade private(PVT)/E-1, forfeitures of $250.00 per month for 4 months, to be confined at hard labor for 4 months, and to be discharged from the service with a BCD. d. On 7 March 1983, the convening authority approved the sentence and except for the BCD, ordered the sentence executed. e. On 30 June 1983, the appellate (United States Army Court of Military Review) affirmed the findings of guilty and the sentence as approved by the convening authority. f. SPCM Order Number 675, dated 2 November 1983, shows, in pertinent part, his sentence was finally affirmed and the BCD ordered, was duly executed. g. The applicant was discharged on 16 November 1983. His DD Form 214 shows he was discharged in the rank/grade of PVT/E-1, as a result of his SPCM conviction. He completed 3 years, 11 months, and 8 days of net active service this period and 9 months prior inactive service with lost time from 12 January 1983 to 5 April 1983. 6. His record shows his case was reviewed by the Army Discharge Review Board (ADRB) on 31 December 1984. The Board determined that he was properly and equitably discharged. Accordingly, his case was denied. 7. In ABCMR Docket Number AR20070010871, the applicant applied to the ABCMR requesting a characterization upgrade from a BCD to honorable. His case was boarded on 12 February 2008; however, his case was denied based on a failure to provide sufficient mitigating evidence to warrant a change in his discharge. The Board further noted that his discharge was consistent with his offenses. 8. By regulation, a member will be given a BCD pursuant only to an approved sentence of a general or SPCM. The appellate review must be completed and-the affirmed sentence ordered duly executed. See paragraphs 14b, 98 and 127, Manual for Court Martial (MCM). 9. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully reconsidered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense (DOD) guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not 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 to amend the decision of the ABCMR set forth in Docket Number AR20070010871 on 13 February 2008. 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. Army Regulation 635-200 prescribes the policy and procedures for enlisted separations. a. 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. 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. c. A discharge under other than honorable conditions is an administrative separation for service under condition other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reason, or for the good of the service. d. A BCD is issued pursuant only to an approved sentence of a general, or SPCM that has been empowered to adjudge this discharge. The appellate review must be completed, and the affirmed sentence ordered duly executed. 2. 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. 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003233 6 1