ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 April 2019 DOCKET NUMBER: AR20180015224 APPLICANT REQUESTS: upgrade his bad conduct discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Letter of support * Two separation orders * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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, the day of the incident in question, he was getting a ride from the base to his home; he lived there with his wife and young daughter. He was unaware the other Soldiers with whom he was riding were under surveillance because of illicit drug activity. He contends he was an innocent party who, because of this incident, lost his military career. He feels the Board should consider him for an upgrade because he has not been involved in any criminal or drug activities since his discharge. 3. The applicant provides a letter of support from his sister, which essentially states: a. From the time they were teenagers, her brother (the applicant) talked about joining the Army; he wanted to be in the Special Forces. He joined the USAR while still in high school and left for basic combat training at age 16. Once he turned 18, he joined the Regular Army. b. Since being discharged, her brother started a new career in the restaurant business; he began as a waiter and worked his way up to being a trainer. He has managed to live his life drug-free and has not been involved in criminal activity. Knowing him as she does, she feels he was in the wrong place at the wrong time. Because of this, he has paid a high price; he deserves an upgraded character of service. 4. The applicant's service records show: a. The applicant enlisted in the U.S. Army Reserve (USAR) on 16 June 1983 at 17 years of age. He was ordered to active duty on 31 May 1984 (at age 18) to participate in initial active duty for training; on 20 July 1984, he was honorably released from active duty. b. On 16 April 1985, orders discharged him from the USAR so he could enlist into the Regular Army; he enlisted on 17 April 1985. c. While stationed in Korea, he was promoted to specialist four, effective 1 March 1986. He was subsequently transferred to Fort Bragg, NC, arriving on 10 July 1986. d. On 13 November 1986, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for wrongful use of marijuana. The punishment included reduction to private first class (PFC)/E-3 and a suspended forfeiture of $200 per month for 2 months; on 18 February 1987, the imposing officer vacated this suspension because, on or about 14 February 1987, the applicant wrongfully possessed cocaine. e. On 10 June 1987, a general court-martial convicted the applicant for wrongful distribution of cocaine, on or about 13 February 1987. The court sentenced him to confinement for 8 months, forfeiture of $200 per month for 8 months, reduction from PFC to private (PV1)/E-1, and a bad conduct discharge. On 20 July 1987, the general court-martial convening authority approved the sentence and, except for the bad conduct discharge pending appellate review, ordered its execution. f. On 30 November 1987, the U.S. Army Court of Military Review affirmed the findings of guilt and the sentence. On 18 April 1988, a general court-martial order showed the sentence had been affirmed; it ordered the execution of the applicant's bad conduct discharge; on 28 April 1988, he was discharged accordingly. His DD Form 214 shows he was awarded or authorized the Army Service Ribbon and the Overseas Service Ribbon. 5. The applicant contends, in effect, he was in the wrong place at the wrong time; as such, his conviction was both wrongful and unjust. Since his discharge, he has not used drugs and has avoided criminal activity; in addition, he has achieved post-service accomplishments that warrant the Board's consideration. 6. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and letters of support 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. Based upon the record, 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to 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 actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence 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 on the basis of 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) AR20180015224 4 1