ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  15 August 2019

	DOCKET NUMBER:  AR20170015219


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)
* Self-authored Statement

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 was separated from the Army due to drugs.  He admits that he made the transaction and it was wrong; however, the label of “drug dealer” is unjust.  He adds that his lawyer was only trying to receive a plea bargain and did not accurately represent him at trial (see attached).

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 17 November 1988.

	b.  Court-martial charges were preferred on 13 October 1992.  His DD Form 458 (Charge Sheet) indicates he was charged with:

* one specification of wrongfully distributing about .4 grams of cocaine, a controlled substance
* one specification of wrongfully possessing about .1 grams of cocaine, a controlled substance

	c.  On 14 December 1992, he was convicted by a general court-martial for:
* wrongfully distributing about .4 grams of cocaine, a controlled substance
* wrongfully possessing about.1 grams of cocaine, a controlled substance

	d.  The Court sentenced him to confinement for 9 months, reduction to the grade of E1 and a bad conduct discharge.

	e.  On 21 April 1993, the convening authority approved the sentence and ordered the sentence executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

	f.  On 2 July 1993, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

	g.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 57, dated 24 February 1994, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s reduction of grade to E1 and the bad conduct discharge executed.

	h.  On 5 April 1994, 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 years, 9 months and 17 days of active service and 215 days of lost time.

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

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.  Based upon the multiple drug offenses, as well as a lack of post-service accomplishments or character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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 (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.

ABCMR Record of Proceedings (cont)	 AR20170015219
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