IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190014971 APPLICANT REQUESTS: Reconsideration of his previous request to upgrade his bad conduct discharge (BCD) to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC95-05435 on 17 May 1995. 3. The applicant states a Soldier who had failed the drug test and was in the process of being dishonorably discharged agreed to give the name of a person who sold drugs in exchange for an honorable discharge. His name was given, but he never sold drugs, he just knew where to get the drugs. He was set up to look like he was the actual person selling the drugs. He was wrongfully accused. 4. On 17 August 1989, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic). On 23 February 1990, he was assigned to Fort Sill, OK, with duties in this MOS. 5. The applicant’s available service record does not contain all of the documents surrounding his discharge process. However, his previous ABCMR Record of Proceedings (ROP) shows he accepted nonjudicial punishment (NJP) on 18 March 1992 for using cocaine. His punishment consisted of reduction to private E-1, a forfeiture of $392 pay for 2 months, and 45 days of restriction and extra duty. 6. A Bar to Reenlistment Certificate shows, on 6 April 1992, a bar was approved against the applicant for having a positive urinalysis and he was also give a general counseling form for this urinalysis on 26 February 1992. 7. The applicant’s previous ABCMR ROP also shows: a. An interim U.S. Army Criminal Investigation Division (CID) Report, dated 27 April 1992, revealed the applicant was the subject of a CID investigation involving the use and supply of illicit drugs and he was charged with violation of the Uniform Code of Military Justice (UCMJ): * Article 112a, for three specifications of wrongful use of cocaine, and two specifications of wrongful distribution of cocaine * Article 80, for three specifications of attempted wrongful possession of cocaine * Article 134, for one specification of communication of a threat b. An Article 32 Investigation Report, dated 30 April 1992, recommended trial by a special court-martial empowered to adjudge a BCD. c. On 15 May 1992, the Staff Judge Advocate recommended that the applicant be referred to trial by a general court-martial (GCM). The appropriate authority approved the recommendation and referred the charges to trial by a GCM. d. On 21 May 1992, as part of a pre-trial agreement, the applicant pled guilty to four specifications of charge 1, and one specification of charge 2. In exchange for his guilty pleas, the appropriate authority agreed not to approve any sentence for confinement in excess of 12 months, a discharge in excess of a BCD, or a fine. 8. GCM Order 287, dated 8 July 1993, shows the applicant was convicted by a GCM of the charges and specification for which he pled guilty. On 27 May 1992, he was sentenced to confinement at hard labor for 12 months, a forfeiture of $500 pay for 15 months, and a BCD. 9. On 2 July 1992, the appropriate authority approved only so much of the sentence as provided for confinement for 12 months, a forfeiture of $500 pay for 15 months, and a BCD. Except for the part of the sentence extending to the BCD, the sentence was ordered to be executed. 10. On 30 September 1992, the U.S. Army Court of Military Review affirmed the findings and sentence approved. There is no evidence to indicate that he petitioned the U.S. Court of Military Appeals for a review of his case. 11. On 24 May 1993, the applicant was released from parole and placed on excess leave pending the execution of his BCD. On 8 July 1993, the appropriate authority ordered the BCD duly executed. Accordingly, on 30 July 1993, he was discharged after completing 3 years, 1 month, and 17 days of active service and accruing 385 days of lost time. His awards are listed as the National Defense Service Medal and Army Service Ribbon. 12. On 17 May 1995, the ABCMR denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11, provides that 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. 14. 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. 15. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, 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 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 the character of service the applicant received upon separation was 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states 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 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel. a. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11, provides that 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. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. 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) AR20190014971 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014971 5 ABCMR Record of Proceedings (cont) AR20190014971 4