ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: 20170019223 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * 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 stated that he wasn’t aware that the Board was available to upgrade his military discharge. He adds that he received a court-martial for smoking marijuana with a married civilian friend. He always smoked off-post. If he could get a general discharge he could get to the top of the housing and urban development for veteran (HUDVET) low income housing list. He has been living with friends since his leg muscle and tendons ripped two and half years ago. He is going to have to apply for disability again because he can’t trust his leg to do pharmacy work. He would like his own place. 4. A review of the applicant’s service record shows the follow: a. He was appointed as an Army Reserve commissioned officer and executed an oath of office with concurrent call to active duty on 3 July 1981. b. General Court- Martial Order Number 30, dated 15 September 1983 shows the applicant convicted by a general court-martial on 28 July 1983 of one specification of stealing pharmaceutical products, one specification of soliciting sexual favors from a woman known to him to be the wife of an enlisted Soldier, one specification of wrongfully using some amount of marijuana, and three specifications of wrongfully a. possessing some amount of marijuana. The court sentenced him to be dismissed from the service, forfeiture of all pay and allowances, and confined to hard labor for 16 months. c. On 15 September 1983, the convening authority approved the sentence and order it executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. d. On 3 April 1984, the United States Court of Military Appeals affirmed the findings of guilty and the sentence. e. General Court-Martial Order 42, dated 29 November 1984 shows the sentence has been affirmed and ordered executed. f. The applicant was dismissed on 22 March 1984. His DD Form 214 shows he was dismissed under the provisions of Army Regulation (AR) 635-120 (Officer Transfers and Discharges), chapter 12, as a result of court-martial, and his service characterization is under other than honorable. He completed 2 years, 10 months and 20 days of service. 5. By Army regulation 635-120, an officer who has been convicted and sentenced to dismissal as a result of general court-martial proceedings will, pending appellate review of such proceedings, be processed as a Regular Army officer or an officer holding a commission or a warrant in the Army of the United States without component will be retained pending completion of appellate review. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the multiple UMCJ offenses and the lack of character evidence provided by the applicant to show he has learned and grown from the events which led to the 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 :XX XX XX 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. 5/13/2019 X 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 Regulations 635-120 (Officer Resignations and Discharges) prescribes governing officer separations; provides policies and procedures for separating officers from active duty. It provides procedures whereby an officer on active duty may tender hill resignation or be discharged and whereby officers on active duty or retired officers may be dropped from the rolls of the Army. It states that an officer who has been convicted and sentenced to dismissal as a result of general court-martial proceedings will, pending appellate review of such proceedings, be processed as follows: (1) A Regular Army officer or an officer holding a commission or a warrant in the Army of the United States without component will be retained pending completion of appellate review, (2) An officer of the Army National Guard of the United States or of the United States Army Reserve will, pending completion of appellate review, be relieved from active duty. Upon final determination in Headquarters, Department of the Army concerning the officer's retention or separation, the Adjutant General will make necessary notifications and will, when appropriate, publish separation orders. 3. Army Regulation (AR) 600-8-24, Officer Resignation and Discharges, prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more. a. Paragraph 1-21a, states an honorable characterization of service for an officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. b. Paragraph 1-21b, states that a under honorable conditions characterization of service of an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A Separation under honorable conditions will normally be appropriate when an officer: submits an unqualified resignation or a request for released from active duty (REFRAD) under circumstances involving misconduct, is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an under other than honorable conditions separation is appropriate, is discharged for physical disability resulting from intentional misconduct or a. willful neglect, or which was incurred during a period of unauthorized absence or is discharged under the Military Personnel Security Program. 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.