ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20180006862


APPLICANT REQUESTS:  an upgrade of his bad conduct discharge to a general, under honorable conditions.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Letter of Verification, Detroit Veterans Transitional Housing Program
* Michigan Identification Card
* Social Security Card Replacement Printout
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Birth Certificate

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 needs his discharge upgraded to obtain housing.

3.  The applicant provides:

     a.  A verification letter from the Detroit Veterans Center Transitional Housing Program as evidence of his residency and program participation.  

     b.  He also provided a Michigan State identification card, social security card printout, and a certificate of live birth as additional means of identification.

4.  The applicant’s service record shows:

	a.  He enlisted in the Regular Army on 22 September 1980.

	b.  He served in Germany from 9 July 1981 to 5 September 1982.  

	c.  He accepted nonjudicial punishment on 21 April 1981 for possession of marijuana.  His punishment consisted, in part of reduction to private/ (E-1), (suspended for 30 days).

	d.  He received nonjudicial punishment on 25 August 1981 for wrongful wear of the Ranger Tab and Airborne Wings.  His punishment consisted, in part, of reduction to private/(E-1), (suspended for 90 days).

	e.  On 10 May 1983, he was convicted by special court-martial of:

* one specification of wrongful possession of marijuana with the intent to distribute 
* one specification of wrongful distribution of marijuana.

	f.  He was sentenced to a bad conduct discharge, confinement at hard labor for        3 months, reduction to the grade of E-1, and forfeiture of $300.00 per month for             3 months.

	g.  Special Court-Martial Order Number 62, dated 9 June 1983 approved the sentence except for that part of the sentence extending to a bad conduct discharge, ordered the sentence executed by the convening authority.  The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review.

	h.  On 21 July 1983, the general court-martial convening authority denied the applicant’s request to remain on active duty.  On 29 July 1983, the applicant was placed on involuntary excess leave status pending the results of the appellate review.

	i.  The applicant’s service record is void of a response from the Court of Military Review.

 	j.  The applicant was discharged on 14 February 1984.  His DD Form 214 shows he completed 3 years, 2 months and 11 days of net active service with 71 days of lost time.  It also shows he was awarded or authorized the:

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

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.  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 not warranted.  Based upon the short term of honorable service completed prior to a pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, 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 (AR) 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) 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 (General discharge) 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.

	c.  Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) states a member 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.

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)	 AR20180006862


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