ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS
RECORD OF PROCEEDINGS

              

                   BOARD DATE:  9 April 2019

                   DOCKET NUMBER:  AR20180001184

APPLICANT REQUESTS:  His bad conduct discharge (BCD) be upgraded to an under 
honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Records Under the Provisions 
of Title 10, U.S. Code, Section 1552)

FACTS: 

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) 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 is requesting his discharge be upgraded because it was part 
of the stipulations of him pleading guilty.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 16 October 1986.  He 
completed his initial entry training and formal training for qualification in the military 
occupational specialty (MOS) 76Y (Unit Supply Specialist).
4.  The applicant enlisted in the Regular Army on 13 May 1988.

5.  The applicant was tried before a special court-martial on 18 August 1989, at Hanau, 
Germany, wherein he was convicted of violating the following Articles of the Uniform 
Code of Military Justice (UCMJ): Article 112a for wrongfully possessing hashish and 
wrongfully using hashish; Article 90 for willfully disobeying an officer; and Article 91 for 
willfully disobeying and disrespecting a noncommissioned officer.  His sentence 
included his separation from service with a BCD.

6.  The convening authority approved the sentence and ordered it executed.  The record 
of trial was forwarded for appellate review by the U.S. Army Court of Military Review. 

7.  The applicant was placed in an excess leave status on or about 16 November 1989. 
8.  The appellate review was completed on 23 July 1990, with the findings of guilty and 
sentence as approved by the convening authority being correct in law and fact.  
According to the findings of guilty, the sentence was affirmed.

9.  Special Court-Martial Order Number 86, issued by the Headquarters, U.S. Army 
Filed Artillery Center and Fort Sill, Fort Sill, OK on 12 December 1990, noted that the 
sentence had finally been affirmed and ordered his BCD to be duly executed.

10.  The applicant was discharged on 26 December 1990, pursuant to his court-martial 
sentence.  His DD Form 214 shows he was discharged as ordered by "Special Court-
Martial Order # 86 Dated 12 December 1990."  His service was characterized as bad 
conduct.  The narrative reason for separation was "as a result of court-martial."

11.  The Board should consider the applicant's request in accordance with the published 
equity, injustice, or clemency determination guidance.

BOARD DISCUSSION

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service, no 
mitigating circumstances for the misconduct. The Board agreed that the applicant’s 
discharge characterization is appropriate for the misconduct.

BOARD VOTE

Member 1	Member 2	Member 3
:	      :	      :	Full Grant 

:	      :	      :	Partial Grant 

:	      :	      :	Formal Hearing Grant 

: X	:X	:X	Deny









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.

ADMINISTRATIVE NOTE(S):  Not Applicable

REFERENCES:

1.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of 
military records must be filed within 3 years after discovery of the alleged error or 
injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure 
to timely file within the 3-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, set forth the basic authority for the 
separation of enlisted personnel:

   a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor 
and entitles the recipient to benefits provided by law.  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 provides that a general discharge is a separation from the Army 
under honorable conditions.  When authorized, it is issued to a Soldier whose military 
record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

3.  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 ABCMR 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.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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 a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	a.  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 on the basis of equity, injustice, or clemency 
grounds, Boards 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.  

	b.  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)	AR20180001184
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