ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 May 2019

	DOCKET NUMBER:  AR20170019118


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge to general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Summary letter of explanation

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 he wants to upgrade to general discharge.

3.  The applicant provides:

	a.  He was married with two children and living off base in Germany.  A fellow Soldier was offering money to drive him to get illegal drugs.  He thought it would be extra money for his family.  Obviously, a bad decision.  After the transaction, they were stopped by German Police.  He was arrested as the drugs were not on anyone, but in the car which was his.  Therefore, he was held responsible.  He was tried in the military court, he was found guilty and sent to Leavenworth.  He was assigned to the Retraining Brigade and he completed the course.  His sentence was reduced from 6 to 3 months served.  He felt this was a positive sign and he would continue his service in the Army.  He was transferred back to Fort Dix to finish his 6 year commitment.  However, he believed it was a sergeant major who said he couldn’t stay because he was a medic and he didn’t think it would be a good idea.  He was processed out with a bad conduct discharge.  Since his discharge, he has raised 6 children and has 8 grandchildren.  He has been the chief care giver for his parents who are 85 and 81 years old respectfully.  He has had no arrests or incidents involving police departments.  His work history has been mainly in the medical field with no history of substance abuse.  After all these years (36), he feels his discharge was mainly because he made a bad decision at a young age that put him in the wrong place, and at the wrong time.  

	b.  A copy of his resume.

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

	a.  He enlisted in the Regular Army on 7 September 1977.

	b.  He served in Germany from 29 November 1978 to 1 June 1980. 

	c.  He was convicted by a general court martial on 2 June 1980 of two specifications of wrongfully possessing heroin and marijuana, in the hashish form.  The court sentenced him to a bad conduct discharge, confinement at hard labor for 8 months, and forfeiture of all pay and allowances.

	d.  General Court-Martial Order Number 83, dated 21 July 1980, shows the sentence was approved and the record of trial forwarded to the Judge Advocate General of the Army.

	e.  On 7 October 1980, the U.S. Army Court of Military Review rendered a decision that states the Court having found the approved findings of guilty and the sentence correct in law and fact, affirmed the sentence.

	f.  On 7 June 1980, his sentence was approved by the convening authority and ordered duly executed.

	g.  He was discharged on 17 July 1981.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged under the provisions of chapter 11 of Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge.  He completed 3 years, 4 months, and 9 days of active service.  It also shows:

* Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), Sharpshooter, M-16 Rifle Expert, Hand Grenade, and Sharpshooter, .45 Caliber Pistol
* Item 24 (Character of Service), Bad Conduct Discharge
* Item 28 (Narrative Reason for Separation), as a result of court martial
* Item 29 (Dates of Time Lost During This Period), 2 June 1980 to 3 December 1980

5.  By regulation, 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.


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 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 warranted.  Based upon the type of misconduct, the passage of time and the guidance on providing clemency opportunities, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).

	 
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 (Personnel Separations Enlisted Separations), in effect at time, provides for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of 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 has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge.  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 reasons of a specific number of convictions by courts-martial or actions under Article 15 of the Uniform Code of Military Justice.  It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded.

	b.  Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 11-2 (Bad Conduct Discharge) 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.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military 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 UCMJ, 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 UCMJ 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 that Military Department.

4.  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)	 AR20170019118


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