ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20190008365 APPLICANT REQUESTS: The applicant requests, an upgrade of his bad conduct discharge (BCD) to general or fully honorable service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Department of Veterans Affairs (VA) (Notice of Disagreement) 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 served with the 193rd Military Intelligence and he traveled with the Special Forces and performed live missions in Honduras, El Salvador, and San Salvador. 3. On 29 July 1982, the applicant enlisted in the Regular Army for 4 years and he held military occupational specialty (MOS) 05C (Radio Teletype Operator), which was redesignated MOS 31C (Single Channel Radio Operator). He was assigned to Headquarters and Headquarters Company, 193rd Infantry Brigade and to the 193rd Military Intelligence Company, Panama with duties in his MOS from 8 February 1983 to 9 August 1984. 4. On 10 August 1984, he was tried by a general court-martial, at Fort Clayton, Panama, and was found guilty of wrongful use of some amount of cocaine, wrongful possession and distribution of some amount of cocaine, and attempting to wrongfully distribute some amount of cocaine. He was sentenced to confinement for 2 years (in excess of 21 months was suspended for 21 months), reduction to pay grade E-1, a forfeiture of all pay and allowances (in excess of $596 pay per month was suspended for 21 months), and the issuance of a BCD. 5. On 26 October 1984, the convening authority approved the sentence and, except for the BCD, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 6. On 14 January 1985, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 7. Department of the Army, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 249, dated 21 May 1985, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's BCD duly executed. 8. On 27 December 1985, he was discharged. His DD Form 214 shows he was discharged as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with a BCD. He completed 2 years and 5 days of creditable active military service and he had lost time from 10 August 1984 through 26 December 1985. 9. The applicant provides a VA Notice of Disagreement that confirms he had an action that was pending the VA appeals process. 10. The applicant contends he served in military intelligence with the 193rd Military Intelligence and he traveled with the Special Forces and performed live missions in Honduras, El Salvador, and San Salvador. a. The available evidence shows he served with the 193rd Military Intelligence Company, but it does not show any travel with the Special Forces to the countries that he specified. b. The evidence does show that he was convicted of several drug offenses and he was given a BCD pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed. The applicant completed one half of his 4 year enlistment obligation. 12. 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. 13. In reaching its determination, the Board can consider his petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered that 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 reason for his discharge and whether to apply clemency. The Board found no evidence of in-service mitigation tp overcome the serious nature of the offence and the applicant provided no evidence 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. 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. X CHAIRPERSON 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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 ordered duly executed. b. 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. c. 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. 3. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. 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. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.