ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20170017879


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)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Self-authored letter, dated 13 October 2017

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 threatened with imprisonment and a dishonorable discharge because he did not know the name of the person they wanted.  It was unjust and threatening.  He regrets the actions and decisions he chose to make almost 45 years ago.  He would request that the Board takes a moment to consider that he was only a 19 year old kid in a strange country with an open mind and even more open heart to the world around him.  His discharge was both surprising and unanticipated as he planned to make the military his career.  He made wrong decisions and acted with a child’s carefree quality to the future stretching before him.  When the U.S. Army Criminal Investigation Command (CID) confronted him about the actions he had taken, he was only a scared kid with prison looming before him and/or death, given his decision.  He is not asking the Board to pity him, nor is he asking for forgiveness, he merely is asking for reconsideration of the punishment that was handed down so many years ago.  

	b.  The military was a vital part of his life, it made him the man he is today and allowed him to marry his wife of 38 years as well as raise two children respectfully.  This verdict has impacted his life in so many ways instead of coming home a free with a clean conscience, he became a shadow of his former self, afraid to tell his family that he had acted on impulse instead of thinking logically, as he has always taught his children to do.  The investigation left him, in a sense, in between a rock and a hard place given that he had no information on the man who gave me the hash that he was caught with, other than his street name.  He knew nothing of his place of business or his home, all he knew was his first name, and even that was most likely incorrect.  CID gave him the choice of giving them his name or going to prison and his choice, either way was not glamorous or exciting in any regard.  For six months his life was in limbo, the threat of prison hovering around him the entirety of it.  He has regretted his actions from the moment they took place and his guilt was never in question.  So once again, he implores the Board to reconsider this judgement and allow him to live his life with pride and his actions once more.

3.  The applicant provides:

* DD Form 214 which shows he was discharged with a bad conduct character of service under provisions (UP) of AR 635-200 (Personnel Separations – Enlisted Personnel) paragraph 11-2 (Bad Conduct Discharge)
* Self-authored letter, dated 13 October 2017, stating his regret and asking for clemency

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

	a.  He enlisted in the Regular Army on 15 June 1976.

	b.  On 2 February 1979, he was convicted by a general court-martial of: 

* one specification possessing Methamphetamine
* one specification of wrongfully transferring Methamphetamine
* one specification of attempting to sell Methamphetamine

	c.  The court sentenced him to be confinement at hard labor for 5 months, forfeiture of $200 pay per month for 5 months; reduction to E-1, and a bad conduct discharge.

	d.  On 3 April 1979, the convening authority approved the sentence, and except the bad conduct discharge ordered t executed.  The record of trial was forwarded to the Judge Advocate General of the Army for appellate review.

	e.  On 23 July 1979, U.S. Army Court of Military Review having found the finding of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such finding of guilty and sentence are hereby affirmed.

	f.  Notice of appeal was sent to the applicant.  There is no date or acknowledgement of receipt of a copy of the decision of the US Army Court of Military Review.  Furthermore, there is no record of an appeal.

	g.  Special Court-Martial Order Number 702, issued by Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 4 November 1980, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

	h.  The applicant was discharged on 30 December 1980 in the rank/grade of private/E-1.  His DD Form 214 shows he was discharged with a bad conduct character of service UP of paragraph 11-2 of AR 635-200.  He had a total of 4 years, 3 months, and 23 days of active service.  Time lost was from 790202-790524.  He was awarded the Sharpshooter M16 Rifle Qualification Badge.

5.  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.

6.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

7.  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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief.  The Board recognized the lengthy term of service completed prior to the misconduct, however, based upon a lack of character evidence to show that the applicant has learned and grown from the events leading to his discharge, 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, sets forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 1-13a(1) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude.  Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member.

	b.  Paragraph 1-13a(2) states an honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial. When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member.

	c.  Paragraph 1-13b states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record.

	d.  Paragraph 11-2 states an enlisted person 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 (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.

ABCMR Record of Proceedings (cont)	 AR20170017879


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