ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20170006388 APPLICANT REQUESTS: an upgrade of his bad-conduct discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter 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 joined the military at a young age. When he was assigned to 167th Air Defense Artillery at Fort Lewis, WA, he was introduced to a number of Vietnam-era enlisted men that introduced him to using drugs and drinking. He was eventually charged with possession of marijuana and sentenced to a bad conduct discharge and 15 months at Fort Leavenworth, KS. He states that although he is not offering excuses for his actions, he hopes that the situational circumstances of the time are taken into account, as an upgraded discharge would allow him to receive healthcare through the Department of Veteran Affairs. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 1 July 1980. His enlistment documents were not available in his record. b. On 18 November 1980, while in training, he accepted non-judicial punishment (NJP) for possession of marijuana. His punishment included forfeiture of $150 per month for two months, 30 days extra duty, and a restriction. c. On 5 January 1981, he accepted NJP for breaking his restriction to the B Battery, Student Battalion, Fort Bliss, TX. His punishment included forfeiture of $200 per month for two months and 45 days extra duty. d. On 21 July 1982, he accepted NJP for biting a superior noncommissioned officer on the finger. His punishment included a reduction in grade to E-3, forfeiture of $100, and 14 days extra duty. e. On 14 December 1982, he was convicted by a general court-martial of three specifications of possession of marijuana on or about 27 July 1982, on or about 2 August 1982, and on or about 12 September 1982, two specifications of wrongful use of marijuana on or about 27 July 1982 and on or about 12 September 1982, and one specification of wrongful solicitation on or about 29 July 1982. f. The court sentenced him reduction to the lowest grade of E-1, confinement at hard labor for a period of 1 year and 3 months, total forfeit of pay and allowances, and a bad-conduct discharge. g. General Court-Martial Order Number 22, dated 25 February 1983 approved the sentence and except for that part of the sentence extending to a bad-conduct discharge, ordered the sentence executed by the convening authority. h. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 23 September 1983. e. On 6 October 1983, he signed the Notice to Accused notifying him of his right to appeal the decision to the U.S. Army Court of Military Appeals. i. General Court-Martial Order Number 142, dated 23 February 1984, affirmed and ordered the sentence duly executed. j. On 14 March 1984, he was discharged. His DD Form 214 for this period of service shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with AR 635-200, paragraph 3-11, with a bad conduct discharge. His DD Form 214 shows he completed 2 years, 8 months, and 29 days of active service. It also shows he was awarded or authorized: * Army Service Ribbon * Expert Rifle M-16 Qualification Badge * Expert Hand Grenade Qualification Badge 4. By regulation, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Bsed upon the short term of service completed prior to a pattern of misconduct, as well as the misconduct involved endangering others, the Board concluded that the characterization of service received 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. 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 Separations), 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 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. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military 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 that Military Department 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. 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) AR20170006388 4 1