ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF:
BOARD DATE:  22 April 2019 DOCKET NUMBER: AR20180016804

APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the characterization of his service is honorable in lieu of bad conduct.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   * DD Form 149 (Application for Correction of Military Record)
   * DD Form 214 FACTS:
1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 does not believe his discharge was consistent with the policies and traditions of the service. He spent 3 months in Federal prison for failing a urinalysis. He believes his unit was biased against him and used him as an example. Other members of his unit participated in the same behavior and they were not given a bad conduct discharge nor were they sent to prison. He believes his punishment was severe.

3. The applicant's records show he enlisted in the Regular Army on 29 September 1999 for 4 years. On 4 May 2000, he was assigned to Fort Bragg, NC, as his first permanent duty assignment.

4. On 24 October 2001, he was convicted by a special court-martial of wrongfully using marijuana between on or about 16 March and 16 April 2001. He pled guilty and he was found guilty of the charge. The court sentenced him to a bad conduct discharge, confinement for 3 months, and a forfeiture of $695 for 3 months.
1. 

5. On 24 October 2001, he was assigned to the Special Processing Company, Personnel Control Facility, Fort Knox, KY, to complete his sentence. He requested and he was granted excess leave from 8 January 2002 to 27 March 2003, until the appellate process and all final administrative action was taken.

6. The convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7. On 28 August 2002, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8. Headquarters, U.S. Army Field Armor Center, Fort Knox, Special Court-Martial Order Number 26, dated 7 February 2003, shows the convening authority ordered the applicant's bad conduct discharge duly executed after completion of all required post- trial and appellate reviews.

9. On 27 March 2003, he was discharged. His DD Form 214 shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  He completed 3 years, 3 months, and 27 days of active service. His DD Form 214 also shows in:

* (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon
* (Character of Service) – Bad Conduct
* (Narrative Reason for Separation) Court-Martial, Other
* (Dates of Time Lost During This Period) – Under Title 10, U.S. Code, section 972: – 20011024-20020107

10. 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.

11. The applicant’s record shows he was convicted by a special court-martial of wrongfully using marijuana, as a result he was issued a bad conduct discharge. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance.

BOARD DISCUSSION:

After review of the application and all evidence, two Board members determined there is sufficient evidence to grant partial relief to upgrade the applicant’s discharge to general under honorable conditions. They found that the unit's punishment of the applicant for 2 times marijuana use was too harsh in light of current more liberal views of marijuana


use. They also felt that the applicant had served honorably until his positive urinalysis, there was no evidence of rehabilitative efforts, and the applicant was punished for his offense (confined for 3 months and lost $695.00 of pay for 3 months) nearly 20 years ago. The dissenting Board member denied relief stating the applicant was court- martialed and his bad conduct discharge punishment should not be reduced.


BOARD VOTE:


Mbr 1
Mbr 2
Mbr 3

:
:
:
GRANT FULL RELIEF
:X
:
:X
GRANT PARTIAL RELIEF
:
:
:
GRANT FORMAL HEARING
:
:X
:
DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. 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:

* item 24 (Character of Service):  “Under Honorable Conditions” vice “Bad Conduct”


																			___________X________________
						Chairperson


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 provides for the separation of enlisted personnel, it provides:

   a. 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. 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. A bad conduct discharge) states 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. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. 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. 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.

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