IN THE CASE OF:  

BOARD DATE:  14 January 2020

DOCKET NUMBER:  AR20190002440


APPLICANT REQUESTS:  His bad conduct discharge (BCD) be upgraded to an under 
honorable conditions (general) discharge.  He also requests to have a personal 
appearance before a Traveling Panel.

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), dated 14 February 2019

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 utilized a DD Form 293 in his request that includes an option for an 
Army Discharge Review Board Traveling Panel hearing.  The regulations governing the 
ABCMR do not provide for this option.

3.  The applicant states he wants to show that after he got in trouble and served his 
time, he became a different person.  He has led a productive life and is married with 
children.  He is currently the assistant Pastor at Dunamis Ministries, charged with the 
development of spiritual awareness, teaching the gospel, and preaching the gospel as 
minister at the senior citizens building.  His ministry is 24/7 wherever he goes.

4.  The applicant enlisted in the Regular Army on 21 January 1975.

5.  The applicant received a letter of reprimand (LOR) on 12 February 1976, for illegal 
possession/use of an altered ration card.

6.  The applicant accepted nonjudicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ), for being absent without leave from on or 
about 22 May 1976 through on or about 26 May 1976.
7.  The applicant received a second LOR on 14 June 1976, for lack of self-control and 
discipline.

8.  Before a general court-marital on or about 3 June 1977, at Wiesbaden Air Base, 
Wiesbaden, Germany, the applicant was found guilty of wrongfully possessing a habit 
forming narcotic drug (heroin) and wrongfully selling a habit forming narcotic drug 
(heroin).  The recommended sentence was confinement for 18 months, forfeiture of all 
pay and allowances for 18 months, reduction to pay grade E-1, and separation from 
service with a BCD.

9.  The appropriate authority approved the court-martial findings and the sentence as 
provided for a BCD, confinement at hard labor for 18 months, forfeiture of $300.00 pay 
per month for 18 months or until release from confinement, whichever was sooner.  The 
case was forwarded to the U.S. Army Court of Military Review for appellate review. 

10.  The U.S. Army Court of Military Review affirmed the general court-martial findings 
and approved sentence on 29 August 1977. 

11.  General Court-Martial Order Number 1198, issued by the U.S. Disciplinary 
Barracks, Fort Leavenworth, Kansas on 7 December 1977, noted that the applicant's 
sentence had been affirmed and ordered the BCD to be duly executed.

12.  The applicant was discharged on 3 February 1978, under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, with 
a separation program designator (SPD) of "JJD" (by sentence of a court-martial).  His 
DD Form 214 further shows he was discharged in the rank/grade of private/E-1, his 
service was characterized as under other than honorable conditions (UOTHC), and he 
was issued a DD Form 259A (BCD Certificate).

13.  The applicant's record documents no acts of valor, significant achievement, or 
service warranting special recognition. 

14.  The applicant has not provided any documentation to support his stated post-
service conduct and behavior.

15.  The Board may consider the applicant's petition, his service record, and his 
statements in light of the published guidance on equity, injustice, or clemency.

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 considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, the charges against him, the court-
martial results and the reason for his separation.  The Board found insufficient evidence 
of in-service mitigation to overcome the serious misconduct and the applicant provided 
no evidence to accompany his statement of post-service achievements or letters of 
reference in support of a clemency determination.  Based on a preponderance of 
evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust.

2.  The applicant's request for a personal appearance hearing was carefully considered. 
In this case, the evidence of record was sufficient to render a fair and equitable 
decision. As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.
3.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.
 



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	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 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 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The regulation provides 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 sets forth the basic authority 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.  A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.  

	c.  A Soldier will be given a BCD only pursuant to an approved sentence of a general 
or special court-martial.  The appellate review must be completed and the affirmed 
sentence ordered duly executed.  

4.  The statutory authority under which this Board was created (Title 10, United States 
Code, Section 1552, as amended) precludes any action by this Board that would disturb 
the finality of a court-martial 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.  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)	 AR20190002440

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190002440


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ABCMR Record of Proceedings (cont)	AR20190002440


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