EARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210009977 
APPLICANT REQUESTS: reconsideration of this previous request to have his bad conduct discharge (BCD) upgraded. He also requests personal appearance before the Board. 
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 5 May 2021 
FACTS: 
1. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170011964 on 27 June 2019. 

2. 
As a new argument, the applicant states someone came up to him to buy drugs when they could have gone to the main source, which was entrapment. He would like an upgrade due to the circumstances and his unjust arrest. 

3. 
The applicant enlisted in the Regular Army on 21 August 1980. 

4. 
The applicant accepted non-judicial punishment on 19 July 1983, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana on or about 13 June 1983. 

5. 
Before a special court-martial on or about 3 November 1983, at Schofield Barracks, Hawaii, the applicant was found guilty of wrongful use of marijuana on or about 7 June 1983, and three specifications of wrongful possession and distribution of lysergic acid diethylamide (LSD) on or about 16 July 1983. The court sentenced him to reduction to the grade of E-1, confinement at hard labor for three months, forfeiture of pay for three months, and to be separated from service with a BCD. The sentence was approved on 7 February 1984 and the record of trial was forwarded for appellate review. 

6. 
The U.S. Army Court of Military Review affirmed the findings and sentence on 13 July 1984. 

ABCMR Record of Proceedings (cont) AR20210009977 

7. 
Special Court-Martial Order Number 428, issued by U.S. Army Correctional Activity, Fort Riley, Kansas on 22 October 1984, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 

8. 
The applicant was discharged on 2 November 1984.  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 characterized as bad conduct. 

9. 
On 27 June 2019, the Board considered his request for an upgrade of his discharge and denied it. The Board found insufficient in service mitigating factors and he ddi not provide any evidence in support of an upgrade to his discharge. 

10. 
Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code (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. 

11. 
The Board should consider the applicant's statement and overall service record 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigation for the serious misconduct. The applicant provided insufficient evidence of post-service achievements or letters of reference to support a clemency determination. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. Based on a preponderance of evidence, the Board determined that the applicant’s discharge was not in error or unjust. 
The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 
ABCMR Record of Proceedings (cont) AR20210009977 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 
XX: XX 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 to amend the decision of the ABCMR set forth in Docket Number AR20170011964 on 27 June 2019. 

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. 
ABCMR Record of Proceedings (cont) AR20210009977 
REFERENCES: 
1. 
Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides 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.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

2. 
Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 


a. 
 Paragraph 3-7a provided 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 provided 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 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. 


ABCMR Record of Proceedings (cont) AR20210009977 
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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