ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:   

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20190006272


APPLICANT REQUESTS:  In effect, an upgrade of his bad conduct discharge (BCD).  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Records under the Provisions 
of Title 10, U.S. Code, Section 1552) 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code, 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 states, in effect he was railroaded and made an example of.  No drugs 
were found on him and no drugs were found in his home; however, he was still charged 
with possession.  

3.  The applicant enlisted in the Regular Army on 6 August 1981.  

4.  Before a special court-martial on or about 10 August 1985, at Sheridan Kaserne, 
Augsburg, Federal Republic of Germany, the applicant was convicted of:  

*	violating a lawful general regulation by possessing drug paraphernalia 
*	resisting apprehension
*	drunk driving/reckless driving
*	wrongful possession and use of hashish 

He was sentenced to be discharged from the service with a BCD; forfeiture of $100.00 
pay per month for one month, and reduction in rank/grade to private/E-1.  The sentence 
was approved on 22 October 1985, and, with the exception of the BCD, was ordered 
executed.  The record of trial was forwarded to the U.S. Army Court of Military Review 
for appellate review.

5.  The applicant was placed in an excess leave status pending the outcome of his 
appellate review.  

6.  The applicant's record is void of decisional documents from either the U.S. Army 
Court of Military Review or the U.S. Military Court of Appeals.

7.  The applicant was discharged on 15 July 1988.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he was discharged pursuant to Special 
Court-Martial Orders (SPCMO) #29, dated 22 June 1988.  These orders are not 
available for review.

8.  The Board should consider the applicant request in accordance with the published 
equity, injustice, or clemency determination 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 considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, the results of the court-martial, the 
reason for his separation and whether to apply clemency.  The board found insufficient 
evidence of in-service mitigation for the misconduct and the applicant provided no 
evidence of post-service achievements or letters of reference in support of a clemency.  
Based upon a preponderance of evidence, the Board determined that the character of 
service the applicant received upon separation was not in error or unjust.

2.  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

: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, U.S. Code, 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 sets forth the basic authority for the separation of enlisted 
personnel.  

	a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides that 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.  Chapter 11 provides that an enlisted person will be given a BCD 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.  The service 
of Soldiers sentenced to a BCD was to be characterized as under conditions other than 
honorable.

3.  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.

4.  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.





ABCMR Record of Proceedings (cont)	 AR20190006272

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