BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180015822 APPLICANT REQUESTS: in effect, his bad conduct discharge (BCD) be upgraded to a more favorable 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), dated 14 September 2018, with self-authored statement * 105 pages of prior service documents including his DD Form 214 (Certificate of Release or Discharge From Active Duty), for the period ending 23 November 2005 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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, in effect, that he included his active military records from his enlistment in 1988 through his discharge in 2003. It is with regret that he received a BCD. He requests a review of his fifteen years of service for a discharge upgrade. He has accepted responsibility for his unbecoming actions as a Soldier and leader. He realizes he failed himself and his Soldiers. He requests a review of his discharge, since society has evolved with accepting cannabis as a useful substance that has scientifically been used for medicine, and the laws surrounding its use have been adjusted. 3. The applicant enlisted in the Regular Army on 23 March 1988. He served through several periods of reenlistment and attained the rank/grade of sergeant/E-5. He deployed to Hungary (Yugoslavia) from 5 August 1997 through 29 May 1998. His awards include; the Army Commendation Medal (2nd Award), the Army Achievement Medal (5th Award), the Army Good Conduct Medal (5th Award), the Korea Defense Service Medal, the Armed Forces Expeditionary Medal, the Humanitarian Service Medal, and the NATO Medal. 4. Before a general court-martial on or about 7 October 2003, at Fort Bliss, TX, the applicant was tried and convicted of the following violations of the Uniform Code of Military Justice (UCMJ). a. One specifications of violating Article 112a; specifically, for wrongfully distributing approximately 18.39 grams of marijuana, a scheduled II controlled substance, on or about 15 March 2003. b. One specifications of violating Article 112a; specifically, for wrongfully possessing approximately 38 grams of marijuana, a scheduled II controlled substance, with the intent to distribute 6.67 grams of said controlled substance, on or about 6 May 2003. 5. The applicant's sentence included confinement for six months; reduction to the rank/grade of private/E-1; and separation from service with a BCD. His sentence was approved on 9 July 2004, except for that portion extending to the BCD, and was ordered executed. The record of trial was forwarded to the U.S. Army Court of Criminal Appeals for appellate review. 6. General Court-Martial Order, issued by the Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY on 30 September 2005, noted that the sentence in the applicant's court-martial had been affirmed and ordered his BCD duly executed. 7. The applicant was discharged on 23 November 2005, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as the results of a court-martial sentence. His service was characterized as bad conduct. 8. 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. 9. The applicant provides 105 pages of his prior service documents for consideration in his case. 10. The Board should consider the applicant's overall service record, and his request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the applicant’s previous periods of honorable service, but found insufficient evidence of in-service mitigation for the serious misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 three 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 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 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. c. Paragraph 3-10 provides that 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. 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// ABCMR Record of Proceedings (cont) AR20180015822 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1