ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 September 2019 DOCKET NUMBER: AR20190010096 APPLICANT 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) * DD Forms 214 (Certificate of Release or Discharge from Active Duty), for the periods ending 18 December 2002 and 14 February 2007 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: a. He is now 31 years old and more mature. He has three beautiful children that depend on him. He is also a 200 Ton Captain. He now knows that making a careless mistake can cost him or someone else their life. b. Back in 2007, while in Iraq, he was under a lot of stress. He had never in his life had to protect himself and his battle buddies by shooting people and getting shot at. He was smoking marijuana not selling it. He received the National Defense Service Medal, Iraq Campaign Medal, Army Service Ribbon, and the Armed Forces Reserve Medal. He has learned that a man can do lots of great things right but only the bad is remembered. That is why he is requesting an honorable discharge. 3. The applicant enlisted in the Army National Guard (ARNG) on 27 February 2002. After enlisted in the ARNG, he transferred to the U.S. Army Reserve (USAR). He was ordered to active duty in the USAR and entered a period of active duty on 15 May 2004. 4. The applicant served in Iraq from on or before February 2005 to 31 July 2005. 5. Before a special court-martial on 1 August 2005, at Camp Liberty, Iraq, the applicant was found guilty of wrongfully distributing some amount of marijuana, while receiving special pay, on or about 6 June 2005. The court sentenced him to confinement for seven months, reduction to the rank/grade of private/E-1, and to be discharged from service with a BCD. The sentence was approved on 16 October 2005. 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 30 March 2006. 7. Special Court-Martial Order Number issued by Headquarters, U.S. Army Armor Center and, noted the applicant's sentence had been affirmed and ordered the BCD duly executed. 8. The applicant was discharged on 14 February 2007. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, as a result of court-martial, and his service was characterized as bad conduct. 9. The Board should consider the applicant's overall 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, his record of service, his deployment, 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 the applicant’s misconduct and the applicant provided insufficient evidence to support his statement regarding his post-service achievements and provided no 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. 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 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 3 provided that an enlisted person would be given a bad conduct discharge 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, 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) AR20190010096 5 1