ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 May 2019

	DOCKET NUMBER:  AR20180000237


APPLICANT REQUESTS: an upgrade to his bad conduct discharge characterization

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge From the Armed Forces of the united States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 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 served as an armor and supply specialist in the Army, and was stationed at Fort Leonard Wood, Missouri.  He performed his job well and generally, had no issues at work.  He became friends with one of the trainees at Fort Leonard Wood and they would get together occasionally.  On those occasions, they smoked marijuana and one day while at work, he was apprehended by the Criminal Investigative Division (CID) and happened to have marijuana on himself.

     b.  Since leaving the military, he has been an upstanding citizen, without any law enforcement encounters.  He no longer dabbles in drugs and his brief experience
with them was limited to his youth.  While it was admittedly a bad decision to use marijuana while on active duty, he does not believe this behavior warranted a
bad conduct discharge and the bar to his benefits, which accompanies this kind of discharge. The implications of his discharge have only recently become clear to him, and he is only now aware of the many benefits for which he is not eligible, due to this discharge.  He respectfully requests consideration of upgrading his character of discharge.

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

	a.  He enlisted in the Regular Army on 29 July 1983.

   b.  On 7 August 1984, he was convicted by Special Court-Martial Order Number 19 for one specification of attempted distribution of some amount of marijuana on 22 May 1984 and one specification of introduction of some amount of marijuana onto an armed forces installation between 14 April and 22 May 1984.  The court sentenced him to a reduction to private (E-1) and issuance of a bad conduct discharge.  
   
   c.  On 24 September 1984 the convening authority approved the sentence and except for the bad conduct discharge, order the sentence executed

	d.  On 30 May 1985, the appellate (United States Army Court of Military Review) affirmed the findings of guilty and the sentence as approved by the convening authority correct in law and fact.

	e.  Special Court-Martial Order Number 30, dated 5 September 1985, shows, in pertinent part, that his sentence was finally affirmed and the bad conduct discharged was ordered duly executed.

	f.  The applicant was discharged on 12 September 1985.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of his general court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge.  He completed 1 year, 10 months and 18 days of creditable active military service with no lost time.  His DD Form 214 also shows he was awarded or authorized the: 

* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M16)
* Army Service Ribbon

4.  By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence 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 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.  Based upon the short term of service completed prior to multiple UCMJ violations, as well as a lack of character evidence submitted by the applicant to show he 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 635-200, in effect at the time, sets for the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a 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 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.  A characterization of under honorable conditions may be issued only when the reason for the member’s separation specifically allows such characterization 

	c.  Paragraph 3-11, of that regulation covers Bad Conduct Discharges and 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 (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.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180000237


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