ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20190001930 APPLICANT REQUESTS: The applicant requests correction of her discharge to show her characterization of service is upgraded to general, under honorable conditions 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 (Certificate of Release or Discharge from Active Duty) 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 she was convicted of selling drugs to a fellow Soldier. There was no proof of exchange of drugs or money. There was no evidence other than the word of a service member who had been caught with LSD (lysergic acid diethylamide). She believes the service member gave up her name to get his jail time reduced. The bust involved a large number of civilian and military personnel. She was facing significant jail time, but she was only sentenced to serve 6 months in Manheim, Germany/Fort Riley, KS. She is suffering from service connected injuries and cannot access Department of Veteran’s Affairs (VA) medical care for those injuries. She is only making a request for a general discharge to access VA medical care. 3. The applicant's record shows she completed active duty training from February 1981 to August 1982. She was issued a DD Form 214 for this period of service. 4. On 31 August 1982, she enlisted in the Regular Army for 3 years. She held military occupational specialty 16E (Hawk Fire Control Crewmember). 5. On 5 December 1983, she accepted nonjudicial punishment under the provisions of Article 15 for failure to go to her appointed place of duty [the basic skills education program] at the prescribed time on 18 and 21 November 1983. Her punishment consisted of reduction to pay grade E-2 (suspended), a forfeiture of pay, extra duty, and restriction. 6. On 21 May 1984, the above suspended punishment was vacated and she was reduced to pay grade E-2 after she was in the wrongful possession, use, and distribution of marijuana. 7. On 3 October 1984, the applicant pled guilty and she was found guilty and convicted by a special court-martial of: * possessing some amount of marijuana in the hashish form in May 1983, October 1983, and January 1984 * wrongfully using marijuana in the hashish form in March 1984 * wrongfully distributing 1.49 grams, more or less of marijuana in the hashish form on 17 April 1984 8. She was sentenced to reduction to private/pay grade E-1, a forfeiture of pay for 5 months, confinement at hard labor for 5 months, and to receive a bad conduct discharge. 9. On 18 January 1985, the sentence was approved. The record of trial was forwarded to the Judge Advocate General of the Army for review by the Court of Military Review, and except for the bad conduct discharge was executed. 10. On 31 January 1985, the applicant was medically and mentally cleared for separation. 11. On 20 May 1985, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 12. On 27 September 1985, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 13. On 10 October 1985, she was discharged. Her DD Form 214 shows she was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), as a result of court-martial, with a bad conduct discharge. This form further shows she completed 2 years, 9 months, and 5 days of creditable active military service during this period and she had lost time from 3 October 1984 through 4 February 1985. 14. On 30 January 1995, the Army Discharge Review Board (ADRB) reviewed her discharge but found it proper and equitable. The ADRB unanimously voted to deny her a change in the character of service and the reason for discharge. 15. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides that a Soldier will be given a BCD 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. 16. The ABCMR does not grant requests for the correction of records solely for making the applicant eligible for veterans or other benefits. Additionally, neither the applicant nor the available records provide evidence of service-related injuries. 17. The applicant contends she was convicted based on the word of another service member. However, the applicant pled guilty to the charges for which she was convicted. Her record shows she received one NJP and she was separated due to a court-martial for several offenses involving marijuana, to include wrongfully distributing marijuana. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency 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 discussed the severe nature of the misconduct and the applicant’s statement regarding the misconduct. The Board found no mitigating factors and the applicant did not provide any evidence of post-service conduct that could be considered in making a clemency determination. The Board found insufficient evidence to support a correction to the applicant’s record. 2. After reviewing the application and all supporting documents, the Board determined 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 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. A Soldier will be given a BCD 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. b. 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. c. 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. 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. ABCMR Record of Proceedings (cont) AR20190001930 5 1