ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20180016596 APPLICANT REQUESTS: upgrade of his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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, in effect, his discharge was in error and unjust because he was entrapped. a. While stationed in Hawaii, his chain of command charged him with selling less than 4 grams of marijuana to CID (U.S. Army Criminal Investigation Command). Earlier, on his arrival in Hawaii, M__ F__ befriended him; they smoked marijuana together. M__ F__ said he had a cousin who wanted to buy some marijuana. The applicant told him he did not sell marijuana; his source was his neighbor. M__ F__ kept asking the applicant to get him and his cousin a bag of marijuana; unbeknownst to him, M__ F__'s cousin was CID. b. One day, they came by his apartment. The applicant told them to stay there while he went next door to get them a bag of marijuana; this happened twice. The applicant later learned M__ F__ had become a CID informant after being busted for cocaine. The applicant argues these circumstances are entrapment; M__ F__ only introduced CID to him as his cousin so the applicant would get them marijuana; M__ F__ was trying to get a lesser sentence. 3. The applicant's service records show: a. He enlisted into the Regular Army on 21 April 1982 for a 4-year term. On completion of initial training, orders assigned him to Fort Carson, CO; he arrived on or about 20 August 1982. In or around January 1984, orders reassigned him to the 25th Infantry Division in Hawaii; on his departure from Fort Carson, his chain of command awarded him the Army Commendation Medal. He arrived in Hawaii on 27 February 1984. b. Effective 16 April 1984, his chain of command in Hawaii promoted him to specialist five (SP5)/E-5. c. On 21 March 1985, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for two specifications of failing to go to his appointed place of duty at the time prescribed. d. On 11 April 1985, a general court-martial convicted him of two specifications of wrongfully distributing marijuana (12.5 grams on 6 December 1984 and 12.8 grams on 10 December 1984). The court sentenced him to 18 months confinement, forfeiture of all pay and allowances, reduction to private/E-1, and a bad conduct discharge. On 13 May 1985, the general court-martial convening authority approved the sentence and, with the exception of the bad conduct discharge, ordered its execution. e. On 11 July 1985, the U.S. Army Court of Military Review determined the findings and sentence were correct; the court affirmed both. f. On 23 December 1985, a general court-martial order announced the appellate review process had been completed; it directed the execution of the applicant's bad conduct discharge on the conclusion of his term of confinement. g. On 10 July 1986, the applicant was separated with a bad conduct discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 year, 11 months, and 15 days of his enlistment contract, with lost time from 11 April 1985 until 9 July 1986. He was awarded or authorized the Army Service Ribbon and two marksmanship qualification badges. 4. The applicant contends he was entrapped by a CID informant. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the misconduct and the lack of character evidence submitted by the applicant showing he has learned and grown from those events, the Board concluded that the characterization of service received at the time of discharge 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: 1. 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. 2. Prior to closing the case, the Board did not the administrative note below by the analyst of record and recommended that change be made to the applicant’s record to more accurately depict his military service. 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): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. As a result, amend his DD Form 214, ending 10 Jul 1986, by adding the Army Commendation Medal (1st Award). 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 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. 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. c. 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. ABCMR Record of Proceedings (cont) AR20180016596 4 1