ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 19 May 2021 DOCKET NUMBER: AR20200009873 
APPLICANT REQUESTS: 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), dated 1 December 2020 
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 his discharge was unjust; he was a good Soldier that got caught up in a bad situation and made a bad choice. He has been an upstanding citizen since then.  He has worked as a contractor for the military and has volunteered to support Soldiers abroad. He is currently a functional test technician with Boeing. 

3. 
The applicant enlisted in the Regular Army on 11 September 1985. 

4. 
Before a general court-martial on or about 25 February 1989, at Fort Hood, Texas, the applicant was found guilty of wrongful distribution and possession of 0.5 grams of methamphetamine, on or about 4 November 1988, and of attempted wrongful distribution of 3.5 grams of methamphetamine on or about 9 November 1988. The court sentenced him to reduction to the grade of private/E-1, forfeiture of all pay and allowances, confinement for three years, and to be discharged with a BCD. 

5. 
The sentence was approved on 21 March 1989 and, except for that portion pertaining to confinement in excess of 14 months and his separation from service with a BCD, was ordered duly executed. The record of trial was forwarded for appellate review. 

6. 
The U.S. Army Court of Military Review affirmed the findings and sentence on 26 April 1989. 

7. 
General Court-Martial Order Number 642, issued by the U.S. Army Correctional Activity, Fort Riley, Kansas on 27 July 1989, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 

8. 
The applicant was discharged on 8 September 1989.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial, with his service was characterized as bad conduct. 

9. 
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. 

10. 
The Board should consider the applicant's overall record and statement in accordance with the published equity, injustice, or clemency determination guidance. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 reason for his separation and whether to apply clemency. The ABCMR 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. The Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board considered the applicant's statement regarding post-service conduct, but did not find it supported by further evidence. 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 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
XXX XXX XX 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. 
X 
CHAIRPERSON 
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 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.  The version in effect at the time provided 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. 

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 Service Discharge Review Boards and Service 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. 
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