ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008312


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction 
of Military Records (ABCMR) decision promulgated in Docket Number AR1999018165 
on 13 January 2000.  Specifically, he requests his bad conduct discharge (BCD) be 
upgraded to either an under honorable conditions (general) discharge or an honorable 
discharge.

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 9 January 2019
*	third-party character reference letters from two of his brothers, attesting to his 
good character and post service conduct

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 
AR1999018165 on 13 January 2000.

2.  The applicant submitted a new argument with this application that was not 
considered by the Board during its initial consideration.  This new argument warrants 
consideration at this time.

3.  The applicant states his discharge should be upgraded so he can start using 
Department of Veterans Affairs (VA) facilities and start receiving VA benefits.

4.  The applicant enlisted in the Regular Army on 4 November 1974.  He completed 
training as a bridge crewman.

5.  The applicant was honorably discharged on 19 June 1977 for the purpose of 
immediate reenlistment.  He was issued a DD Form 214 (Report of Separation from 
Active Duty) for this period that confirms his service was characterized as honorable.

6.  The applicant reenlisted in the Regular Army on 20 June 1977.
7.  The applicant received nonjudicial punishment (NJP) in July 1981, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following 
offenses:

*	for being disorderly in a public place, on or about 27 April 1981
*	for failing to obey a lawful order, on or about 15 June 1981
*	for willfully disobeying a lawful order from a superior commissioned officer, on or 
about 15 June 1981

8.  Special Court-Martial Order Number 94, issued by Headquarters, 3rd Armored 
Division on 18 October 1982, shows the applicant was tried before a special court-
martial on or about 21 July 1982, at Hanau, Federal Republic of Germany, where he 
was convicted of the following offenses:

*	wrongfully possessing 3.35 grams, more or less, of marijuana in hashish form, on 
or about 5 June 1982
*	wrongfully transferring marijuana in hashish form, on or about 5 June 1982 
*	wrongfully selling marijuana in hashish form, on or about 5 June 1982

9.  The applicant's sentence included reduction in rank/grade to private/E-1; 
confinement at hard labor for four months; a fine payable to the U.S. in the amount of 
$80.00; and separation from service with a BCD.  The convening authority approved the 
sentence as adjudged on 18 October 1982.  The record of trial was forwarded to The 
Judge Advocate General of the Army for review by the U.S. Army Court of Military 
Review.  

10.  The U.S. Army Court of Military Review affirmed the special court-martial findings 
and sentence on 18 August 1983.  There is no evidence that the applicant petitioned the 
U.S. Court of Military Appeals for a grant of review.

11.  Special Court-Martial Order Number 763, issued by the U.S. Army Correctional 
Activity, Fort Riley, Kansas on 30 November 1983, noted that the approved sentence 
had been finally affirmed and ordered the BCD executed.

12.  The applicant was discharged on 14 December 1983, under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3.  His  
DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms his 
narrative reason for separation was "As a result of court-martial."  He was discharged in 
the rank/grade of private/E-1 and was issued a BCD.

13.  The ABCMR denied the applicant's request for a discharge upgrade on 13 January 
2000.

14.  The applicant provides third-party character reference letters from two of his 
brothers, one undated and the other dated 4 May 2019, wherein the brothers attest to 
his current medical conditions, his need to receive VA medical benefits, and his good 
post-service conduct.  

15.  Any redress by this Board of the finality of a court-martial conviction is prohibited by 
law.  The Board is only empowered to change a discharge if clemency is determined to 
be appropriate to moderate the severity of the sentence imposed.

16.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The Board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and the statements from his brothers, and 
did not find any evidence of error, injustice, or inequity.  The applicant had no wartime 
service and insufficient evidence of mitigating circumstances for the misconduct.  
Neither did the Board find sufficient evidence corroborating the post-service honorable 
conduct his brothers describe that might have mitigated the discharge characterization 
received for the period 20 June 1977 to 14 December 1983.  The Board agreed that the 
applicant’s discharge characterization is appropriate.  

2.  The Board noted that the applicant may be eligible for some VA benefits based on 
his period of honorable service from 4 November 1974 to 19 June 1977.  The Board 
encourages the applicant to contact the VA for that determination.  

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.



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 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.  Paragraph 3-11 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 duly executed.

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)	 AR20190008312

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