IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190014704 APPLICANT REQUESTS: * an upgrade of his bad conduct discharge to a general under honorable conditions * to change his narrative reason from ?As a Result of Court-Martial? to ?Secretarial Authority? APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Applicant’s Counsel, dated 27 September 2019 * Counsel’s Statement of Facts, dated 27 September 2019 * Exhibit (Ex.) A – DD Form 214 for period ending (15 September 1989) * Ex. B – GCMCO NUMBER 32, dated 17 March 1989 * Ex. C – DA Form 2-1 (Personnel Qualification Record Part II, dated 1 November 1985 * Ex. D – Letter of Commendation, dated 18 June 1986 * Ex. E – Applicant’s Personal Statement, dated 17 June 2019 * Exs. F – H – Three Letters/Character References 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. Counsel for the applicant states: a. Facts (1) The applicant went on active duty in the Army in 1985 and remained on active duty until his discharge in 1989. His enlistment ended with a bad conduct discharge as a result of a general court-martial. Exs. A and B. Prior to the incidents giving rise to his court-martial, he was an exemplary soldier. He was promoted to the rank of private first class and received a letter of commendation. Exs. C & D. Commanding Officer K_ selected the applicant as an outstanding Soldier and as the most highly motivated graduate in his U.S. Army Field Artillery Training Center class. Ex. D. He served without incident until right before the expiration of his enlistment. He had decided not to reenlist due to family issues back home and had begun the process of wrapping up his affairs. Ex. E. He had already started shipping his personal effects home. Id. (2) It was only in December of 1988 that the applicant began to suspect that there may be an issue with his discharge orders. Id. It was at that time that he began to inquire about the status of his discharge and learned that he was not being discharged as expected, but was instead being reenlisted and deployed to Saudi Arabia. Id. When he attempted to follow-up with his sergeant regarding this issue, he was arrested. Id. He was very confused about the nature of his charges and still does not fully understand the circumstances surrounding his court-martial. Id. At the time, he was under the impression that he was being arrested and court-martialed for not voluntarily reenlisting at the expiration of his initial service commitment. Id. It was only later that he realized he was being court-martialed for possession and distribution of marijuana. Id. (3). The applicant was tried by general court-martial on charges of wrongful use of marijuana, possession and distribution of 3.25 grams of marijuana, and the possession and distribution of .71 grams of marijuana. Ex. B. However, he was only convicted of wrongfully possessing some amount of marijuana and wrongfully distributing .71 grams of marijuana. Id. For these crimes, on 6 January 1988, he was given a bad conduct discharge, confined for 8 months, forfeited all pay and allowances, and reduced to private/E-1. Id. (4) Since his discharge, the applicant has tried to put these isolated incidents behind him. Ex. E. He spent a number of years working odd jobs before finding his true calling as a Youth Minister at the Mount Sinai Baptist Church. Id. He now devotes his life and time to spreading the message of the Lord. Id. Since 2008, he has served as a preacher with a focus on youth services and mentoring. Id. In 2017, his exemplary conduct and devotion led to his appointment as Youth Pastor. Id. (5) People who know the applicant do not believe that his current moral character is in line with the person who was convicted of these crimes while in the service. Exs. F, G, & H. These colleagues describe him as an individual of "strong moral character," an "exceptional human being," and a "loving father, a devoted husband, and a faithful member of the church." Exs. H & G. (6) The applicant's current character may most aptly be summed up by Minister C_, his colleague at Mount Sinai Baptist Church, who said, "Minister [Applicant] is a hard worker who loves the work of Lord and strives to be consistent in his walk with the Lord. He works to be an example for the children to emulate and build trust with their families. In this day and age where there are so many challenges in the church concerning youth, it is refreshing to be witness to someone who I believe will sacrifice his life for any of the children that might come in harm's way. I cannot put into perspective just how much Minister [Applicant] means to the Youth Department and how he influences those that are working with him without simply saying that he is loved and trusted." Ex. F. b. Discussion –– The applicant requests an upgrade of his bad conduct discharge from the Army for purposes of clemency. (1) A service-member's discharge resulting from court-martial may be corrected for the purposes of clemency. 10 USC 1552(f)(2). Clemency is not specifically defined in military regulations or statute. However, entitlement to clemency typically involves an evaluation of a petitioner's post-conviction conduct, the seriousness and recentness of the offense, and remorse. See United States Department of Justice Manual 9 140.112. An evaluation of these factors demonstrates that the applicant is a good candidate for clemency. He has exemplary post-service conduct. He has devoted his life to serving others through his work as a Youth Pastor. His colleagues describe a man who is dedicated to the Lord and to the children he mentors. He now uses his challenging past to assist others in avoiding the mistakes that have plagued his own life. (2) The applicant recognizes the seriousness of the offenses for which he was convicted. However, it is of note that his offenses were non-violent drug offenses involving less than one gram of marijuana. Over 30 years have passed since the conduct giving rise to these charges and his current actions demonstrate that these isolated incidents do not accurately represent the man seeking clemency today. As such, he is a good candidate for a discharge upgrade for the purposes of clemency. c. Discovery of Alleged Error or Injustice –– Item 8 DD Form 149 (1) An application for review of discharge before the Army Board for Correction of Military Records is appropriate because the applicant is well past the 15-year deadline to request upgrade from the Army Discharge Review Board and such a request would be futile. As such, he has exhausted his alternative administrative remedies. (2) Additionally, he requests the ABCMR to excuse untimely filing in the interest of justice. The applicant seeks a discharge upgrade on the basis of clemency which is supported by his years of exemplary post-service conduct. Restricting the applicant's request to the three-year time limit would undermine the purpose of clemency. d. Conclusion: Principles of clemency support an upgrade of [the Applicant's] discharge to general and a change in narrative reason to Secretarial authority. His exemplary post-service conduct demonstrates his qualifications for clemency. For the foregoing reasons, his discharge should be upgraded to general, and the narrative reason should be changed to Secretarial authority. 3. The applicant submitted a personal statement, which is summarized in the statement made by counsel. 4. On 30 October 1985, the applicant enlisted in the Regular Army for a term of 3 years at the age of 20 years old. 5. After completing his initial entry training, on 3 July 1986, he was assigned overseas in Bamberg, Germany. 6. On 30 October 1986 he was promoted from the rank of private/E-2 to private first class (PFC). 7. A DA Form 4465 (ADAPCP (Army Alcohol and Abuse Prevention and Control Program Client Intake/Screening Record (CIR)) shows: a. On 8 February 1987, he was enrolled in ADAPCP, Track II. The applicant had not received any previous alcohol and drug counseling and/or rehabilitation. The ADAPCP staff felt that inpatient detoxification was unnecessary and there was no civilian treatment rehabilitation facility used. b. He had a history of using alcohol, cannabis, and cocaine. He used alcohol between two to seven days prior to enrollment two to six times a week, and he used it prior to federal service. He used cannabis product within one to four weeks of enrollment on a daily basis, and he used cannabis prior to federal service. He used cocaine over six months prior to enrollment less than once a month, it was not taken by needle, and he used it prior to federal service. 8. On 1 September 1988, his immediate commander initiated a bar to reenlistment against the applicant. The DA Form 4126-R (Bar to Reenlistment Certificate) shows: * He received two nonjudicial punishments (NJPs) for violating Article 86 (Absence without leave), Uniform Code of Military Justice (UCMJ), which were imposed on 15 January 1988 and 10 May 1988 (the record is void of the NJPs) * He was counseled on six occasions for failure to repair and being denied a promotion * He had a traffic accident in a military vehicle * He elected not to submit a statement in his own behalf * The bar to reenlistment was approved on the same date and the applicant elected not to appeal 9. On 6 January 1989, the applicant was convicted by general court-martial, contrary to his pleas, of two specifications of Article 112a (Wrongful use, possession, etc., of controlled substances) UCMJ: * wrongfully possessing and distributing some amount of marijuana in the hashish form on 15 June 1988 * wrongfully possessing and distributing 0.71 grams of marijuana in the hashish form on 2 July 1988 10. He was sentenced to be discharged with a bad conduct discharge, confined for eight months, forfeiture of all pay and allowances, and reduction to private/E-1. On 17 March 1989, the sentence was approved and, except for the bad conduct discharge, ordered executed. 11. On 5 May 1989, the U.S. Army Court of Military Review determined the findings of guilty and sentence as approved by the convening authority correct in law and fact and affirmed both the findings and sentence. 12. On 25 May 1989, the applicant underwent a medical examination and mental status evaluation; both cleared him for separation. 13. On 20 July 1989, the applicant was released from confinement and placed on excess leave until 15 September 1989 (58 days). 14. On 6 September 1989, after being affirmed, the bad conduct discharge was ordered executed. 15. On 15 September 1989, the applicant was discharged from the service. He completed 3 years, 4 months, and 1 day of his 3 year contractual obligation, with 195 days lost due to confinement. His DD Form 214 shows: * He was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar * Character of Service: Bad Conduct * Separation Authority: Chapter 3, Section IV * Separation Code: JJD * Reenlistment Code: RE–3 * Narrative Reason for Separation: As a result of court-martial 16. The applicant provides a. Ex. D – Letter of Commendation, dated 18 June 1986, which shows, while the applicant was in one station training, his brigade commander commended him for having been selected as an outstanding Soldier of the Field Artillery Training Center, Fort Sill, OK. It states, in pertinent part, he was selected as the most highly motivated graduate in recognition of his academic and military accomplishments during that period. b. Ex. F – H – Three Letters/Character References, letters from: * Minister C_, undated, attesting to the applicant’s character as a youth pastor at the church for approximately two years * SFC M_ (Retired), dated 27 April 2019, attesting to his character as a youth pastor and a co-member of the church * Pastor M_, undated, attesting to his character as a friend for 40 years. 17. Army Regulation 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. A Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and after completion of appellate review and after such affirmed sentence has been ordered duly executed. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 18. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 19. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's and his counsel's statements, his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and found the evidence provided describing his post-service achievements and character insufficiently mitigating to support a favorable clemency determination. Based on a preponderance of evidence, the Board determined the characterization of his service and the narrative reason for his discharge were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 is appropriate when the quality of the Soldier’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. c. Chapter 3 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct Discharge) stated 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. d. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 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) AR20190014704 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014704 9 ABCMR Record of Proceedings (cont) AR20190014704 8