ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20190006556 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC82-02452 on 7 April 1982. Specifically, he requests his bad conduct discharge (BCD) be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 11 March 2019 * Letter of Appreciation, dated 17 October 1978 * Certificate of Achievement, awarded 20 October 1978 * DD Form 214 (Certificate of Release or Discharge for Active Duty), for the period ending 3 April 1981 (Member Copy 1) FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC82-02452 on 7 April 1982. 2. As a new argument, the applicant states in effect, he served with pride for 2 years and 7 months. He was young and made mistakes but he is now older, retired, and on social security. If he gets an upgrade he can be more at peace with himself, he will get a Department of Veterans Affairs (VA) identification card, and he will be proud of his service to his country. He is not seeking medical benefits; he is seeking his pride, before his time comes (he is 65), after serving his country with honor. 3. The applicant enlisted in the Regular Army on 8 March 1978. After completing his initial entry training, he was reassigned to the Federal Republic of Germany on or about 10 July 1978. 4. The applicant was promoted to the rank/grade of specialist four (SP4)/E-4, effective 6 November 1979. 5. Before a general court-martial on or about 18 July 1980, at Drake Kaserne, Frankfurt, Federal Republic of Germany, the applicant was tried and was convicted of the following: * wrongfully possessing .14 grams, more or less of a habit forming narcotic drug [heroin], on or about 6 March 1980 * wrongfully selling a habit forming narcotic drug [heroin], on or about 6 March 1980 * wrongfully possessing .203 grams, more or less of a habit forming narcotic drug [heroin], on or about 8 March 1980 6. The applicant's sentence included his forfeiture of all pay and allowances; confinement at hard labor for six months; reduction in rank/grade to private/E-1; and separation from service with a BCD. His sentence was approved on 14 August 1980. He was ordered confined to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority may direct. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review 7. The U.S. Army Court of Military Review affirmed the findings and sentence on 10 November 1980. 8. General Court-Martial Order Number 17, issued by Headquarters, 18th Airborne Corps and Fort Bragg, Fort Bragg, North Carolina on 20 March 1981, noted that the applicant's sentence had finally been affirmed and ordered the applicant's BCD duly executed. 9. The applicant was discharged on 3 April 1981, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court-martial. His DD Form 214 shows his service was characterized as under other than honorable conditions (UOTHC). 10. 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. 11. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 7 April 1982. 12. The applicant provides a letter of appreciation and a certificate of achievement for the Board's consideration. 13. The Board should consider the applicant's statement, provided evidence, and the entirety of his record 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, a letter of appreciation and Certificate of Achievement, his record of service, the frequency and nature of his misconduct, the court-martial proceedings and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome his misconduct and the applicant provided no evidence of post-service achievement 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 receive 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 :XXX :XXX :XXX 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 3-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. c. Chapter 11 of the version in effect at the time provided that an enlisted person would 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. a. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs 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. b. 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. c. 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) AR20190006556 5 1