IN THE CASE OF: BOARD DATE: 13 February 2023 DOCKET NUMBER: AR20220007160 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. Further, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050007710 on 21 March 2006. 2. The applicant states he was wrongfully accused of possession of contraband that was placed into his locker; however, it was not placed by him. It was placed by the service members that were charged in the crime with him. 3. On 12 December 1973, the applicant enlisted in the Regular Army for three years. Upon completion of training, he was awarded military occupational specialty 12B (Combat Engineer). 4. Before a general court-martial on 24 September 1975, at Fort Lewis, Washington, the applicant was found guilty of: * attempting to sell cocaine, on or about 30 April 1975 * wrongfully sell marijuana, on or about 21 April 1975 * wrongfully introduce 2991.67 grams, more or less, of marijuana to a military post, on or about 5 May 1975 * wrongfully transfer marijuana, on or about 20 April 1975 * wrongfully possess 2991.67 grams, more or less, of marijuana, on or about 5 May 1975 5. The court sentenced the applicant to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement at hard labor for three years, and discharge from the service with a bad conduct discharge (BCD). The sentence was approved on 20 November 1975; however, the period of confinement was not to exceed 15 months. The record of trial was forwarded for appellate review. 6. The applicant was released on parole on 4 May 1976. 7. The previous ABCMR case states that on 9 August 1976 the U.S. Court of Military Appeals affirmed the findings and sentence. However, the case was held in abeyance pending the release of a related case. 8. On 23 December 1976, the applicant was placed in an excess leave status. 9. On 2 June 1977, the U.S. Army Court of Military Review found the particulars of the related case did not apply to the applicant's case and affirmed its prior decision. 10. On 29 June 1977, the applicant petitioned the Court of Appeals for a grant of review. Per the previous ABCMR case, the U.S. Court of Military Appeals denied the petition for review on 24 August 1977. 11. General Court-Martial Order Number 832, issued by Headquarters U.S. Disciplinary Barracks, Fort Leavenworth, Kansas on 12 September 1977, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 12. The applicant was discharged on 15 September 1978. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, with separation code "JJD" (court-martial). His service was characterized as UOTHC. He was credited with 3 years, 5 months, and 28 days of net active service this period. 13. The applicant petitioned the ABCMR on 10 April 2005, for consideration of his request to have his BCD upgraded. The Board voted to deny relief and determined the overall merits of this case were insufficient as a basis for correction of the records. 14. 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. 15. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, medical review and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, the Board determined that 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 :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 to amend the decision of the ABCMR set forth in by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050007710 on 21 March 2006. 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 11 provided that an enlisted person would be given a BCD 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. 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. a. Paragraph 2-9 states 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. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20220007160 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1