ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  26 April 2019

	DOCKET NUMBER:  AR20180016065


APPLICANT 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 self-authored statement

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 he was with two friends; a large bag of weed was found on 
them but only a single roach was found on him.  He was the only one who received a 
discharge because he was the lowest ranking in the group.  He made a mistake, one 
that he has lived with for more than 30 years.  He paid the penalty and was released 
from the military.  He wanted to re-enlist but did not get the opportunity.  He was 
wrongfully let go for one mistake.

3.  The applicant enlisted in the Regular Army on 15 July 1980.

4.  Special Court-Martial Order Number 40, issued by Headquarters, 172nd Infantry 
Brigade (Alaska), Fort Richardson, AK on 16 September 1983, shows the applicant was 
convicted of wrongfully possessing and using .3 grams of marijuana, on or about 10 
May 1983.  The court sentenced him to reduction to the grade of E-1, confinement at 
hard labor for three months, forfeiture of pay for three months, and separation from 
service with a BCD.  The sentence was approved and the record of trial was forwarded 
to the U.S. Army Court of Military Review for appellate review.

5.  The U.S. Army Court of Military Review affirmed the sentence on 3 August 1984, 
except for the portion pertaining to possession of marijuana was set-aside and 
dismissed.

6.  Special Court-Martial Order Number 462, issued by the U.S. Army Correctional 
Activity, Fort Riley, KS on 19 November 1984, ordered the sentence duly executed.

7.  The applicant was discharged on 27 November 1984.  The DD Form 214 (Certificate 
of Release or Discharge from Active Duty) he was issued confirms he was discharged 
as a result of a court-martial conviction.  His service was characterized as bad conduct.

8.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient 
evidence to grant partial relief.  The applicant’s contentions were carefully considered.  
The Board applied Department of Defense standards of liberal consideration to the 
complete evidentiary record.  The Board agreed the characterization for the misconduct 
was severe for one charge of marijuana possession.  The Board agreed to grant 
clemency in the form of an under honorable conditions characterization.

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.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing him a DD Form 
214 showing his characterization of service as under general conditions.

	  
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 (Personnel Separations - Enlisted Personnel), in effect at 
the time, set 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.  Chapter 3 provided that an enlisted person would be given a bad conduct 
discharge pursuant only to an approved sentence of a general or special court-martial, 
after completion of appellate review, and after such affirmed sentence has been ordered 
duly executed.

3.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  In accordance with Title 10, USC, 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)	 AR20180016065
	
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