ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 August 2019 DOCKET NUMBER: AR20180003544 APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his bad conduct discharge to general, under honorable conditions and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC90-l0945 on 21 August 1991. 2. The applicant states he is requesting his discharge be upgraded to a general, under honorable conditions. He argued at the time of his court-martial that the contraband did not belong to him, but in trying to help a friend he made a stupid and costly mistake which has followed him over the years. The discharge has also impacted his wife and children. 3. The applicant states he has provided a copy of a police record from Maryland, a copy of his business license, and of copy of his driver’s license, and that community references would be provided at the hearing; however, no documents were included with the application. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 13 June 1980. b. He served in Germany from 29 March 1982 to 1 August 1983. c. On 15 July 1983, he was convicted by a general court-martial for: a. * one specification of violating a lawful general regulation by possessing a concealed switchblade knife * one specification of wrongful possession of 83 grams or more of marijuana in hashish form with the intent to distribute * one specification of wrongful distribution of 50 grams or more of marijuana in the form of hashish * one specification of wrongful distribution of 33 grams or more of marijuana in the form of hashish d. His sentence included a bad conduct discharge, confinement for eighteen months, forfeiture of $100.00 per month for eighteen months, and reduction to the lowest enlisted grade. e. On 14 October 1983, the convening authority approved the sentence and except for that part of the sentence extending to the bad conduct discharge, confinement for fifteen months, forfeiture of $100.00 per month for fifteen months, and reduction to the lowest enlisted pay grade, ordered the sentence executed. f. General Court-Martial Order Number 419, dated 5 June 1984, after Article 71 (c) was complied with and the sentence was affirmed, ordered the bad conduct discharge, confinement for fifteen months, forfeiture of $100.00 per month for fifteen months, and reduction to the lowest enlisted pay grade, executed. g. On 21 June 1984, he was discharged from active duty with a bad conduct characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 1 month, and 19 days of active service with 325 days of lost time. It also shows he was awarded or authorized: * Good Conduct Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Caliber Pistol (.45) 5. 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. 6. By regulation, (AR 15-185) an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 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. 1. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered the applicant's request, his service record, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found no evidence of in-service mitigation and the applicant provided no character witness statements or evidence of post-service achievements for the Board to consider for clemency. Based on a preponderance of evidence, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 to amend the decision of the ABCMR set forth in Docket Number AC90-l0945 on 21 August 1991. 9/9/2019 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. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 (General Discharge) states 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. c. Paragraph 3-7c (Under other than honorable conditions discharge) states a discharge under other than honorable conditions in an administrative separation from the service under conditions other than honorable. d. Paragraph 3-11 (Bad conduct discharge) states 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. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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 1. 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//