ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20180014967 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20080015013 on 8 January 2009. In effect, he 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 Record Under the Provisions of Title 10, U.S. Code, Section 1552) with personal statement * a statement from his spouse * his Federal resume FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080015013 on 8 January 2009. 2. The applicant states: a. It has been 33 year since his court-martial for marijuana distribution. He served only 9 months of his 1 year sentence and was told that after 10 years, his discharge would be upgraded to a general discharge. He had two prior honorable discharges prior to his BCD. b. He recounts his service history and his version of the events leading to his court- martial. He states he was asked by a friend to deliver a bag of marijuana to another person not realizing it was wrong because they were friends. There was no money exchanged by him, he was just doing his friend a favor. As a result of the court-martial and discharge, his German wife divorced him. c. He has had a clean record and good life since he was discharged. He remarried in 1989 and completed a degree in medical administration. However, he is now disabled due a back injury, migraine headaches, arthritis in both hand, hearing loss, stomach pain, and neuropathy in both ankles. d. He believes the court-martial charge was based on a form of entrapment and wants any reference to him being a drug distributor "cleaned up." 3. The applicant's request for a reconsideration is based in part on the same issues as the prior review with minor time changes and the new issue of an allegation of entrapment and clemency based on his two prior honorable discharges. 4. The applicant enlisted in the Regular Army on 21 July 1976 and served honorably on active duty until 18 July 1979. He reenlisted in the Regular Army on 3 January 1980 and served honorably until 20 November 1983. During these periods, he was twice awarded the Army Good Conduct Medal. 5. The applicant again reenlisted in the Regular Army on 21 November 1983. 6. Before a general court-martial on or about 7 March 1985, at Fort Hood, Texas, the applicant was convicted of wrongfully distributing 108 grams, more or less, of marijuana. He was sentenced to be discharged from the service with a BCD, forfeiture of all pay and allowances, confinement for one year, and reduction in rank/grade from specialist five/E-5 to private/E-1. The court-martial convening authority approved the sentence on 25 April 1985, and, except for the part of the sentence extending to a BCD, ordered the sentence to be executed. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 7. The unexecuted portion of the applicant's sentence to confinement for 1 year was remitted on 16 December 1985 and he was released from confinement on that date. He was placed in an excess leave status pending the outcome of the appellate review of his case. 8. The U.S. Army Court of Military Review affirmed the findings and sentence on 20 December 1985. 9. The applicant was discharged on 1 August 1986, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, by reason of his court-martial conviction. The DD Form 214 he was issued shows: * he was discharged in the rank/grade of private/E-1 * he entered active duty on 21 November 1983, which coincides with his reenlistment date * he was credited with 1 year, 10 months, and 27 days of active service this period * he was credited with 6 years, 10 months, and 16 days of prior active service * he was credited with 6 months and 21 day of prior inactive service * his service was characterized as bad conduct * he was in an excess leave status for 229 days 10. The applicant's record contain a DD Form 214, for the period ending 18 July 1979, which confirms his service during his first period of enlistment was deemed honorable. His record is void of a DD Form 214, covering the period 3 January 1980 through 20 November 1983; however, his reenlistment on 21 November 1983 would not have occurred if his preceding period of service had been less than honorable. 11. The applicant petitioned the ABCMR for a discharge upgrade. The ABCMR denied the applicant's request for an upgrade of his BCD on 8 January 2009. 12. There has never been a provision of regulation or law that provided for the automatic upgrade of less than honorable discharges after the passage of a certain amount of time. 13. The Board may consider the applicant's two periods of honorable active duty and his statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, and in addition to the administrative notes below the signature, the Board determined that there is sufficient evidence to grant relief and amend ABCMR's decision in Docket Number AR20080015013 on 8 January 2009. 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 found the statement, evidence of previous honorable service, and honorable post-service as a general services civilian employee in the federal government to be compelling. Furthermore, the Board agreed that the applicant’s punishment and characterization were too harsh for the circumstances, given current standards. Therefore, the Board found sufficient evidence to upgrade the discharge. As the Board reviewed the case, it found evidence that the DD Form 214 effective “86- 08-01” is missing important information as it omits the applicant’s Army Good Conduct Medal. Therefore, the Board agreed that this medal should be added to the applicant’s record. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief and amend ABCMR's decision in Docket Number AR20080015013 on 8 January 2009. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 with effective date “86-08-01” as follows: 1. item 24 (Character of Service): “General Under Honorable Conditions” vice “Bad Conduct,” 2. item 27 (Renlistment Code): “RE-3” vice “RE-4,” and 3. item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) as follows: add Army Good Conduct Medal 8/27/2019 X CHAIRPERSON Signed by: BENZINGER.MARY.M.1292680909 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant 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. 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//