ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20190003652 APPLICANT REQUESTS: The applicant requests: * an upgrade of his bad-conduct discharge to an honorable discharge * personal appearance before the Board 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) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 3 February 1987 * Two Letters/Character References * Applicant’s Maine Fallen Heroes Foundation Business Card 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 falsely accused of soliciting marijuana in a drug sting at Fort Riley, KS. He never touched any money, marijuana, or tested positive on a urinalysis. Since his discharge from the Army he has volunteered for many projects and currently is the Chairman and Founder of the Maine Fallen Heroes Foundation. 3. On 27 September 1983, at the age of 21 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. On 17 April 1986, the applicant was convicted by general court-martial of two specifications of wrongfully distributing marijuana: 11.87 grams and 63.60 grams. He was sentenced to reduction to the rank/grade of private one (PV1)/E-1, forfeiture of all pay and allowances, confinement for 11 months, and a bad conduct discharge. 5. On 16 June 1986, the convening authority approved the sentence and bad conduct discharge, ordered the sentence executed. On 16 September 1986, the U.S. Army Court of Military Review, affirmed the findings of guilty and the sentence. The applicant submitted a special petition for clemency to the Commander, U.S. Army Correctional Activity, Fort Riley, KS, and on 25 November 1986 the petition was approved, remitting the unexecuted portion of his confinement. On 23 December 1986, the bad conduct discharge was ordered executed and the unexecuted portion of confinement for eleven months was remitted, as previously approved. 6. On 3 February 1987, the applicant was discharged accordingly. His service was characterized as a bad conduct discharge as a result of court-martial. He completed 2 years, 7 months, and 28 days of net active service this period, with 1 year, 5 months, and 23 days of Foreign Service. His DD Form 214 shows: * He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Army Achievement Medal * M-16 Rifle Sharpshooter Marksmanship Qualification Badge * Dates of Time Lost During This Period: 860417 – 861222 (250 due to confinement, of which, 87 days was confinement was after expiration term of service (ETS)) 7. The applicant provided: * Two Letters/Character References attesting to his good character as a coworker, * Applicant’s Maine Fallen Heroes Foundation Business Card showing him as the chairman and founder. 8. He states he was falsely accused of soliciting marijuana in a drug sting at Fort Riley, KS. He never touched any money, marijuana, or tested positive on a urinalysis. His record shows he enlisted at the age of 21 years old, he was convicted by general court- martial for two specifications of distributing marijuana, and he had 250 days of lost time due to confinement. He served 31 months and 27 days of his 36 months contractual obligation. 9. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. 10. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed. 11. 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. 12. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 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 record, the misconduct and the findings of the court-martial, his statement regarding the offenses, the clemency granted while he confined, his stated post-service conduct and whether to apply clemency. The Board determined that there was sufficient mitigating factors and post- service accomplishments to support a clemency determination and an upgrade of his discharge. The Board determined the available records were sufficient to make a fair decision and deny the applicant’s request for a personal appearance. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 for the period of service ending 3 February 1987 to show in item 24 (Character of Service) – “General, under honorable conditions”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to “Honorable” and granting the applicant’s request for a personal appearance. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. 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. 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 discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. ABCMR Record of Proceedings (cont) AR20190003652 4 1