ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  4 November 2019

	DOCKET NUMBER:  AR20170015205


APPLICANT REQUESTS: reconsideration of an upgrade of his bad conduct 
discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	VA Form 21-526EZ (Application for Disability Compensation and Related 
Compensation Benefits)
*	Self-authored statement
*	Letter from the Disabled American Veterans (DAV)

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 AR2002074041 on 
15 October 2002.

2.  The applicant provided new evidence and arguments not previously considered 
by the Board that warrants consideration at this time.

3.  The applicant states that he is requesting an upgrade because the Department of 
Veterans Affairs (VA) keeps telling him that he is not eligible for any benefits with a 
bad conduct discharge (BCD.)

4.  The applicant provides:

	a.  A copy of VA Form 21-526EZ Application for Disability Compensation and 
Related Compensation Benefits.

	b.  A self authored statement which states that the applicant was receiving 
Supplemental Security Income (SSI) for depression. When he submitted this 
request, he was incarcerated and his SSI has stopped.  He plans on getting his SSI 
started again once he is released.

   c.  A letter from the DAV requests the applicant receive service connection 
benefits for substance abuse, severe depression, and for a sickle cell trait.
   
5.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army (RA) on 8 June 1981.

	b.  He served in Germany from 20 November 1983 to 17 January 1987.

	c.  He received and accepted non-judicial punishment (NJP)  on 10 August 1987 
of being absent from his place of duty and for failure to obey a lawful order from a 
non-commissioned officer (NCO).

     d.  On 17 August 1987, the applicant self-referred himself to the Fort McPherson 
ADAPCP and informed his NCO in charge (NCOIC) that he had been using drugs 
for the past six years.

     d.  On 	25 August 1987 his previous NJP punishment was vacated due to further 
misconduct for being absent from his place of duty on 14 August 1987.

     f.  On 4 November 1987, the applicant was command directed to give a urine 
sample, in which a pre-screening urinalysis resulted in a positive use for cocaine and 
marijuana.  

     e.  On 18 November 1987, he received NJP for two specifications of being absent 
from his place of duty.

     f.  On 4 December 1987, his previous NJP punishment was vacated due to 
further misconduct for being absent from his place of duty.

     g. On 22 December 1987, he received NJP for four specifications of being absent 
from his place of duty, three specifications for failure to go at the time prescribed to 
his appointed place of duty, and for failure to obey a lawful order from an NCO

   f.  The applicant’s unit commander initiated a bar to reenlistment against him due 
to the numerous disciplinary issues.  On 4 January 1988, the commander’s request 
to bar the applicant for reenlistment was approved.  
      
   g.  On 10 December 1987, the applicant acknowledged receipt of the bar to 
reenlistment.
      
   h.  On 4 January 1988, the bar to reenlistment was approved by the approval 
authority.
      
   i.  On 13 April 1988,the applicant was charged and convicted by general court-
martial (GCM) of one specification of AWOL, five specifications of wrongful use of 
cocaine, two specifications of wrongfully distributing cocaine, three specifications of 
housebreaking, and three specifications of larceny.  He was found guilty and 
received forfeitures of $300 per month for 24 months, a fine of $2,000, and to be 
discharged with a BCD.  His sentence was adjudged on 14 April 1988. 
   
   j.  On 25 October 1988, the United States Army Court of Military Review found, 
pursuant to the applicant’s pleas, that he was guilty of AWOL, five specifications of 
wrongful use of cocaine, two specifications of wrongful distribution of cocaine, three 
specifications of housebreaking, and three specifications of larceny.  The convening 
authority approved the sentence of a BCD, confinement for two years, forfeitures of 
$300.00 per month for two years, and a fine of $2000.00.  Accordingly, the findings 
of guilty were affirmed.
   
k.	GCM Order Number 335, dated 3 April 1989, shows the applicant’s sentence 
was finally affirmed and the BCD order executed, pursuant to compliance to Article 
71(c).
   	
   j. On 5 May 1989, he was discharged with a BCD characterization of service.    
His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he 
completed 6 years, 7 months and 9 days of net active service with lost time from 
8 December 1987 to 9 December 1987, 16 December 1987 to 20 December 1987, 
12 January 1988 to 13 January 1988, and from 16 January 1988 to 4 May 1989.

6.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), 
chapter 3-11 of this regulation states a Soldier will be given a BCD pursuant only to 
an approved sentence of a general or special court-martial (SPCM).  The appellate 
review must be completed and the affirmed sentence ordered duly executed.

7.  The applicant’s record is void on any documentation to show he applied to the 
Army Discharge Review Board within 15 years of his discharge.

8.  The applicant applied to the ABCMR in Docket Number AR2002074041 for an 
upgrade to his characterization of service.  On 15 October 2002 the Board denied 
his request.  The Board based their decision on the applicant's contention that his 
commander denied him entry into a substance abuse treatment program, which led 
to his further misconduct that ultimately resulted in his discharge.  However, the 
Board found his claim lacked merit. The evidence of record confirmed that the 
applicant was afforded the opportunity to receive substance abuse treatment as 
indicated by his self-referral to ADAPCP.

9.  The applicant states that he receiving SSI for depression. However, this payment 
stopped when he was incarcerated.  He plans on getting his SSI started again once 
he is released.  He did not state when or why he was given a diagnosis for 
depression or whether it was service connected.
   
10.  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, that the 
applicant showed no remorse, and he 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 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, 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.

2.  Army Regulation 635-200, in effect at the time, provides for the separation of 
enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) states, an honorable discharge is a 
separation with honor.  The honorable characterization is appropriate when the 
quality of the Soldier’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, 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.  Paragraph 3-11 (BCD) states, a Soldier will be given a BCD pursuant only to 
an approved sentence of a general or SPCM.  The appellate review must be 
complete 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 form 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 the 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)	 AR20170015205

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