ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 September 2019

	DOCKET NUMBER:  AR20190009622


APPLICANT REQUESTS:  In effect, that his bad conduct discharge (BCD) be 
upgraded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record 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 (USC), 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, that he was caught in a sting operation when another 
Soldier set him up to do a controlled buy on behalf of the U.S. Army Criminal 
Investigative Command (CID).  The other Soldier was the one who had introduced him 
to cocaine in the first place and set him up in order to get a lighter sentence for himself.  
In 2006, he was injured in a construction site accident; he needs help getting Social 
Security benefits and housing.

3.  The applicant enlisted in the Regular Army on 17 February 1993.  

4.  General Court-Martial Order Number 22, issued by Headquarters, 1st Cavalry 
Division on 27 March 1995, shows the applicant was tried before a general court-martial 
on or about 12 January 1995 and was convicted of wrongful distribution of cocaine, theft 
of $350.00, wrongful use of marijuana, and wrongful use of cocaine.  The recommended 
sentence was two years confinement, forfeiture of all pay and allowances, and 
separation from service with a BCD. 

5.  The court-martial convening authority approved the findings and sentence and 
directed that, except for the BCD, the sentence be executed.  The record of trial was 
forwarded to the U.S. Army Court of Criminal Appeals for appellate review.
6.  The U.S. Army Court of Criminal Appeals affirmed the findings and sentence on  
28 July 1995.

7.  General Court-Martial Order Number 3, issued by Headquarters, U.S. Army Field 
Artillery Center and Fort Sill on 6 February 1996, noted that the sentence had been 
finally affirmed and directed that the BCD be executed.

8.  The applicant was discharged on 11 March 1996, under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, by 
reason of "court-martial, other" and his service was characterized as bad conduct.  His 
DD Form 214 confirms he was discharged in the rank/grade of private/E-1.

9.  The applicant's record documents no acts of valor, significant achievement, or 
service warranting special recognition.

10.  The Board should consider the applicant's petition, his service record, and his 
statements in light of the published Department of Defense guidance on equity, 
injustice, or clemency.

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 outcome of a court-martial and 
the reason for his separation.  The Board found insufficient evidence of in-service 
mitigation for his serious misconduct and the applicant provided no evidence in support 
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

: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, 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 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  Chapter 3 provides that:

   a.  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.  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.  A Soldier will be given a BCD/dishonorable discharge only pursuant to an 
approved sentence of a general or special court-martial.  The appellate review must be 
completed and the affirmed sentence ordered duly executed.  

4.  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.

5.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190009622
	
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