BOARD DATE: 14 February 2020 DOCKET NUMBER: AR20190013388 APPLICANT REQUESTS: an upgrade of his bad conduct discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 was discharged due to drugs and alcohol abuse and maladjustment. An upgrade would enhance his life. 3. On 18 May 1979, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 3 years. After completing initial entry training, the applicant was assigned overseas to Korea. 4. He accepted nonjudicial punishment (NJP) on: * 4 June 1980 for violating a lawful general regulation, by wrongfully purchasing various ration control items in excess of set limits; his punishment of reduction to Private Two (PV2),which was suspended for 90 days, was vacated * 24 June 1980 for breaking restriction 5. On 2 June 1981, he was convicted by special court-martial for three specifications of violating a lawful general regulation by wrongfully possessing one tablet of a dangerous drug, quaalude (methaqualone). He was sentenced to be confined at hard labor for 30 days, forfeiture of $334.00 per month for 6 months, to be reduced to private one (PV1)/E-1, and to be discharged with a bad conduct discharge. On 24 June 1981, the sentence was approved and the bad conduct discharge was suspended for nine months. The sentence was ordered executed. 6. On 28 August 1981, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. On 10 September 1981, the applicant was advised of his right to petition the U.S. Court of Military Appeals (USCMA) to grant a review of his case. On 2 December 1981, his petition for the USCMA to grant him a review was denied. 7. On 26 January 1982, the applicant was hospitalized at, and on 10 February he was released and returned to duty. His medical records show he was hospitalized due to him having chest pains and he was diagnosed with a pulmonic flow murmur. 8. On 16 March 1982, his sentence to a bad conduct discharge was vacated and ordered executed. 9. The record is void of a medical examination. On 22 March 1982, four days prior to his discharge, the applicant completed a Medical Examination for Separation Statement of Option and indicated that he desired a separation medical examination. The form states a medical examination will be scheduled in time to assure completion of the examination, not earlier than four months nor later than one month prior to anticipation date of separation. He underwent a mental status evaluation which cleared him for separation. 10. On 26 March 1982, he was discharged accordingly. He service was characterized as bad conduct. He completed 2 years, 9 months, and 15 days of net active service this period. His DD Form 214 shows: * He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * 45 Caliber Pistol Expert Marksmanship Qualification Badge * Separation Authority: AR 635-200, Chapter 11 * Narrative Reason for Separation: As a Result of Court-Martial, Other * Dates of Time Lost During This Period: 810602-810625 (confinement for 24 days) 11. The applicant states he was discharged due to drugs and alcohol abuse and maladjustment. His record shows he enlisted at the age of 18 years old, he accepted 2 NJPs, he was convicted by special court-martial for wrongfully possessing one quaalude tablet and he had 24 days lost due to confinement. He completed 2 years, 9 months, and 15 days of his 3 years contractual obligation. 12. AR 635-200 (Personnel Separations – Enlisted Personnel) states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 11 states an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial, after completion of appellate review and after such affirmed sentence has been ordered executed. 12. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction but is empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. 13. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the documentary evidence and the offenses involved, as well as a lack of mitigating reasons for the misconduct submitted by the applicant, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the record. 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 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. An honorable discharge is a separation with honor. The honorable characterization will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment or current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. 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. c. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. Chapter 11 (Dishonorable and Bad Conduct Discharge) outlined the steps to be taken for the separation of Soldiers who had been convicted by courts-martial and for whom the punishment included a punitive discharge. It states an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, following the completion of an appellate review, and after such affirmed sentence had been ordered duly executed. 3. Title 10, section 1552 provides 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 Army Board for Correction of Military Records 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. 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, BCM/NRs 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) AR20190013388 4 ABCMR Record of Proceedings (cont) AR20190013388 1