ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170010705 APPLICANT REQUESTS: an upgrade of his bad conduct 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 he separated from the Army for over 31 years ago and feels has received enough punishment for his past transgressions. He adds that he completed his initial enlistment, but was made to extend overseas to receive the bad conduct discharge. He explains that while in the Army, he earned numerous medals. Currently, he is homeless and residing at a transition house and is throwing himself to the mercy of the Board to upgrade the characterization of discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 31 December 1980. b. On 27 May 1982, he accepted nonjudicial punishment, Article 15, for wrongful and unlawful possession of 1 ounce, more or less, of a controlled substance, marijuana. c. On 20 March 1984, he accepted nonjudicial punishment, Article 15, for dereliction in the performance of duties in that he negligently failed to secure his vehicle after parking it off post. d. He received Expiration Term of Service (ETS) orders, dated 9 October 1984, reassigning him to the U.S. Army separation transfer point on 12 December 1984. e. On 29 December 1984, he was convicted by a general court-martial for: a. * one specification of wrongful distribution of 8.44 grams of marijuana in hashish form * one specification of wrongful distribution of 7.91 grams of marijuana in hashish form * one specification of wrongful distribution of 28 grams of marijuana in hashish form f. The Court sentenced him to confinement at hard labor for 14 months, total forfeiture of pay and allowances, reduction to the grade of E1 and a bad conduct discharge. g. On 6 March 1985, the convening authority approved the sentence and ordered the sentence executed. The record of the trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. h. On 12 June 1985, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. i. Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court- Martial Order Number 646, dated 20 November 1985, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered confinement at hard labor for 14 months, forfeiture of all pay and allowances and the sentence to a bad conduct discharge executed. j. On 10 December 1985, the applicant was discharged from the Army under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with a Bad Conduct Discharge Certificate. His DD Form 214 shows he completed 4 year and 1 day of active service. 4. By regulation, (AR 635-200), a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been 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. 1. 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 as was record of service and the nature of his misconduct including the distribution of drugs to others. The Board applied Department of Defense guidance for consideration of discharge requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found no in-service mitigation for the misconduct and the applicant provided no character witness statements or evidence of post-service achievements for the Board to consider for clemency. Based on a preponderance of evidence, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and not in error or unjust. 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. 6/26/2019 X CHAIRPERSON Signed by: 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 (AR) 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 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 3-7c (Under Other Than Honorable Conditions) states a discharge under other than honorable conditions is administrative separation from the service under conditions other than honorable. d. Chapter 3 of this regulation states that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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 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 an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS//