ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170011297 APPLICANT REQUESTS: an upgrade to his bad conduct discharge characterization APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character Reference from his brothers * Character Reference from a co-worker 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 requests for his discharge to be upgraded base on a moral clause of addressing youthful indiscretions that he engaged in during the period that led to his discharge. He was a young and immature Soldier whose outstanding duty performance was in direct contradiction to his after-duty behavior and befriending the wrong influencers. b. He was not allowed to self-correct in a recovery program, as the time and rules allowed for immediate court-martial of which he was advised to take by his JAG counsel. He then (after time served at the Fort Leavenworth Disciplinary Barracks) evolve into a downward spiral into drug abuse and self-destruction of which he was able, through counseling and self-determination, overcome. c. He is presently (since 2012 and counting forward) an employee working for the City of New York as an Inspector with the New York City Department of Transportation. He holds that none of the information presented in the general court-martial case to be in error or unjust, other than that he was an outstanding soldier in his duty performance who could have been afforded an opportunity to participate in the (drug counseling program). 3. The applicant provides: a. A character reference from his younger brother that states that it was because of the applicant’s mentoring that he was able to successfully make the military a career. He goes on to say that the applicant coached him on the “what not to do” or the mistakes that young Soldiers make that gave him an edge helped him forge ahead. He says that since his brother’s departure from the military, he has been able to overcome his challenges and, in essence, has been given a second chance. b. A character reference from his friend and coworker, which states he has known the applicant since 2012 and he possesses many characteristics that he looks for in others like integrity, honesty, determination and respect of others beliefs. c. A character reference from his younger brother who also served in the military and is a spiritual advisory for the family. He states he is not excusing what the applicant have done, but after years of recover and the blessing of a second chance, the applicant is now an outstanding citizen who is employed with the city in the transportation field. 4. A view of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 September 1980. b. He served overseas in Germany from 5 January 1981 until 30 June 1982. c. On 30 July 1981 he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disrespectful language towards his non- commissioned officer. His punishment included a 90 day suspended reduction in grade to private/E-1. d. On 17 August 1982, he accepted NJP under the provisions of Article 15, UCMJ, for failing to be at the time prescribed at his appointed place of duty. His punishment included a reduction to private/E-2. e. On 15 November 1982, he was convicted of a general court-martial, order number 13 for the following: * 5 specifications of wrongfully using marijuana * 2 specifications of wrongfully selling 100 grams, more or less, of marijuana * 1 specification of wrongfully having in his possession 155 grams, more or less, of marijuana f. The court sentenced him to a reduction in rank to private/E-1, forfeiture of all pay and allowances and to be confined at hard labor for 34 months. g. On 17 February 1983, the convening authority approved the sentence and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The United States Army Court of Military Review for appellate review. h. On 29 July 1983, the appellate (United States Army Court of Criminal Appeals) affirmed the findings of guilty and the sentence was approved by the convening authority correct in law and fact. i. General Court-Martial Order 34, dated 10 January 1984 affirmed the sentence and ordered the bad conduct discharge be executed. j. The applicant was discharged on 27 January 1984. His DD Form 214 shows he was discharged in the rank/grade of private/E-1, as a result of his general court-martial conviction, in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3-11, bad conduct discharge. k. He completed 2 years and 2 days of active military service with lost time from 17 September 1982 to 15 September 83 and 16 September 1983 to 27 January 1984. l. He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle (M-16). 5. By Army Regulations (AR) 635-200, (Personnel Separations - Enlisted Personnel) 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 6. 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 and letters of support 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. He did not provide evidence of post-service achievements for the Board to consider. Based upon the amount of drug offenses over a short term of service, 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, in effect at the time, sets for the basic authority for the separation of enlisted personnel a. Paragraph 3-7a (Honorable) 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) 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. A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty (AD). c. Paragraph 3-11 of that chapter states that 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. 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) AR20170011297 4 1