ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170011964 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 state his discharge was unjust. He had one day left in his enlistment and feels like he was coerced to respond inappropriately, which resulted in him receiving a court-martial and a bad conduct discharge. He had never been in any trouble during his time in the military. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 August 1980. b. He served overseas in Hawaii from 8 September 1980 until 2 November 1983. c. On 19 July 1983, he accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana. His punishment was a reduction in rank to private/E-2. d. On 3 November 1983, he was found guilty and convicted by a special court martial on 3 specifications of wrongfully using marijuana, wrongfully possessing lysergic acid diethylamide with intent to distribute, and wrongfully distributing 2 units of lysergic acid diethylamide. The court sentenced him to be confined at hard labor for 3 months, to be reduced to the grade of private/E-1, forfeiture of $100.00 pay for 3 months, and to be discharged from the service with a bad conduct discharge. e. On 7 February 1984, 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 Judge Advocate General of the Army for appellate review. f. On 13 July 1984, 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. g. Special Court-Martial Order 428, dated 22 October 1984, affirmed the sentence and ordered the bad conduct discharge be executed. h. The applicant was discharged on 2 November 1984. His DD Form 214 shows he was discharged in the rank/grade of private/E-1, as a result of his special court-martial conviction, in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, bad conduct discharge. i. His DD Form 214 shows he completed 4 years, 1 month and 6 days of active military service with lost time from 3 November 1983 to 8 December 1983. It also shows he was awarded or authorized the Army Service Ribbon, the Drivers Badge, and the Overseas Service Ribbon. 4. By Army Regulations 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 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 relief is not warranted. The applicant’s contentions were carefully considered as was his record, the frequency sand nature of his misconduct, the reason for his separation and the character of service he received. The Board applied Department of Defense standards for consideration of discharger upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigation for the serious misconduct and the applicant did not provide character witness statements or evidence of post-service achievements in support of a clemency determination by the Board. Based upon a preponderance of evidence, to include a pattern of drug offenses and distributing to others, the Board agreed that the applicant's discharge characterization was 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. X 7/8/2019 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 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//