ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 August 2019

	DOCKET NUMBER:  AR20180012510


APPLICANT REQUESTS:  reconsideration of his previous request for an upgrade to his bad conduct discharge.

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). 

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 AR20100016264 on 20 January 2011.

2.  The applicant states his discharge is improper because of the grounds of which it occurred.  He feels that his discharge should reflect his honorable actions and not a single infraction that happened over forty years ago.

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

	a.  He enlisted in the Regular Army on 26 February 1968.  He served in Korea from 15 July 1968 to 14 August 1969.  

	b.  He was honorably discharged on 14 July 1970 for immediate reenlistment.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that credited him with 2 years, 4 months, and 20 days of active service.  

	c.  He reenlisted on 15 July 1970.  He served in Germany from 31 May 1971 to 1 May 1974.  

	d.  On 15 March 1976, he accepted nonjudicial punishment, for striking another Soldier with his hand.  His punishment was reduction to the E-4, suspended for 6 months.

	e.  On 14 June 1976,  he was convicted by general court martial one specification of wrongfully possessing paraphernalia, one specification of wrongfully possessing marijuana, and one specification of wrongfully transferring a pound or more of marijuana to another Soldier.  The court sentenced him to forfeiture of $200.00 pay per month for 2 months, 45 days extra duty, reduction to E-1, and a bad conduct discharge. 

	f.  The General Court-Martial Convening Authority approved all portions of his sentence and ordered them executed, except the bad conduct discharge on 3 August 1976.  He was placed on excess leave pending completion of the appellate review.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

	g. On 6 May 1977, General Court-Martial Order Number 19, issued by Headquarters, 101st Airborne Division, indicated, after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.  

	h.  On 16 May 1977, the applicant was discharged.  His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, bad conduct discharge, JJD (court martial, other).  His characterization is under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate.  He completed 9 years, 2 months and 22 days of active service with 324 days of lost time.  He was awarded or authorized:

* National Defense Service Medal
* Armed Forces Expeditionary Medal
* Good Conduct Medal (2nd Award)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

	i.  On 23 June 1980, the Army Discharge Review Board determined his bad conduct discharge to be fair and equitable and denied that portion of his request.  However, the portion pertaining to his first period of service was granted and as a result he was issued a DD Form 256A (Honorable Discharge) for the period 26 February 1968 to 14 July 1970.

	j.  On 20 January 2011, the Army Board for Correction of Military Records denied his request to have his discharge upgraded from other than honorable conditions to a honorable discharge.  

4.  By regulation 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 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 pattern of misconduct and the large amount of drug distribution, the Board concluded that the characterization of service received at the time of separation 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 here in 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 Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions of an  individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 11-2, an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a special or a general 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.  

ABCMR Record of Proceedings (cont)	 AR20180012510


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