--ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20180009853


APPLICANT REQUESTS:  an upgrade to his bad conduct character of service discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* United States Army Honorable Discharge Certificate
* United States Army Medical Noncommissioned Officer Course Diploma

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 would like his bad conduct discharge upgraded to a general or an under other than honorable.  He has two honorable discharges prior to his court-martial of which he feels he was falsely accused.

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

	a.  He enlisted in the Regular Army on 5 July 1979.

	b.  He served in Germany from 10 December 1983 to 2 December 1986.

	c.  On 20 January 1989, he was convicted by a general court-martial of:

* one specification of wrongfully possess 1.0 grams of cocaine 
* two specifications of wrongfully distribute 1.0 grams of cocaine

	d.  The court sentenced him to a bad-conduct discharge (BCD), reduced to the lowest rank of Private/E1, forfeiture of all pay and allowances and to be confined for    66 months.

	e.  General Court-Martial Order Number 18, dated 23 March 1989 the convening authority approved the sentence, and for the part of the sentence extending to a BCD, will be executed.

	f.  On 18 February 1993, the U.S. Army Combined Arms Command and Fort Leavenworth, Kansas ordered General Court Martial Order 18 finally affirmed.  Article 71(c) having been complied with the bad conduct discharge will be executed.
 
	g.  He was discharged on 31 March 1993.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years, 5 months and 15 days of net active service.  His DD Form 214 also shows in:

* item 4b (Pay Grade), E-1
* item 12h (Effective Date of Pay Grade), 23 March 1989 
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):  Good Conduct Medal (3), NCO Professional Development Ribbon (level 1), Army Service Ribbon, Overseas Service Ribbon, Expert Field Medical Badge, Air Assault Badge
* item 18 (Remarks), Continuous Honorable Active Service From: 790705-861016//Immediate reenlistments this period: 790705-820210 & 820211-861016
* item 24 (Character of Service), Bad Conduct Discharge
* item 25 (Separation Authority), para 3-10 Army Regulation 635-200 (Personnel Separations – Enlisted Separations)
* item 28 (Narrative Reason for Separation), as a Result of Court-Martial

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation/directive 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.

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 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 standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the multiple drug offenses which included distributing to others, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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 (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.

//NOTHING FOLLOWS//


ABCMR Record of Proceedings (cont)	 AR20180009853


3


1