ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2019 DOCKET NUMBER: AR20190001060 APPLICANT REQUESTS: The applicant requests his bad conduct discharge (BCD) be upgraded to under honorable conditions (general). 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) 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 was young and foolish at the time of his discharge. He joined to become a part of something bigger and greater than himself; he wanted to serve his country and be the best Soldier he could be. He did great throughout basic training and AIT, determined to be the best Soldier he could be. He was stationed at a place where Soldiers had no pride in what they were doing and being young he fell in line with the way they went about their duties. It’s something he’s always regretted. He wants an upgrade for VA benefits and other benefits that come with an honorable discharge. 3. On 11 March 1981, the applicant enlisted in the Regular Army. 4. On 9 December 1981, he received non-judicial punishment (NJP) for having ammunition in his possession. 5. On 18 January 1982, he received NJP for having in his possession drug paraphernalia and again on 5 July 1982. 6. On 20 July 1982, the applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-31 (Expeditious Discharge Program) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) to 1. release him from active duty for transfer to the Individual Ready Reserve (IRR) to complete his contractual service obligation if any, or discharge him form the United States Army; recommending an honorable discharge. The commander stated the reason for his proposed action were the applicant’s poor attitude, behavior, inability to adapt, and lack of self-discipline. a. The applicant acknowledged the commanders proposed discharge action, his available rights, and provided a statement on his own behalf. b. The commander recommended the applicant be discharged and that his service be characterized as honorable. 7. On 23 July 1982, the appropriate authority approved the discharge, directed the applicant be issued an honorable discharge certificate, and transferred to the IRR. 8. On 5 November 1982, the applicant was arraigned, tried, and found guilty of: * wrongfully sell 19.45 grams more or less of marihuana [marijuana] * wrongfully have in his possession 19.45 grams more or less of marijuana * wrongfully transfer 28 grams more or less of marijuana * wrongfully have in his possession 28 grams more or less of marijuana * wrongfully have in his possession 10 grams more or less of marijuana * attempt to wrongfully sell 28 grams more or less of marijuana 9. On 15 November 1982, the sentence was adjudged; he was confined to 4 months of hard labor, discharged from the service with a bad conduct discharge, and forfeiture of $200 pay per month for a period of 4 months. 10. On 3 January 1983, only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for three months, and forfeiture of $200 pay per month was approved. The unexecuted portion of the sentence to confinement at hard labor for 3 months was remitted without further action. 11. On 7 December 1984, charges for attempt to wrongfully sell 28 grams more or less of marihuana was set aside and that specification and charge was dismissed. 12. On 28 March 1985, the applicant was discharged accordingly. He completed 4 years, and 18 days of net active service with a bad conduct discharge. 13. The applicant states he was young and foolish at the time of his discharge. He wanted to serve his country and be the best Soldier he could be but he fell in with the wrong group. This is something he always regrets. 1. 14. Army Regulation 635-200 (Personnel Separations) provides a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. 15. 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. 16. The applicant requests an upgrade so that he may receive benefits. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits. 17. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, his statement, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed his recurring misconduct and the serious nature of the misconduct that led to his conviction as well as the guidance for clemency determinations. The Board determined that the character of his discharge was warranted based on the misconduct. 2. After review of the application and all supporting documents, the Board determined that relief was not warranted. 1. 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. 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 Army Board for Correction of Military Records (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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed. b. 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. 4. 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. 5. 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. 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, 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. 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.