IN THE CASE OF: 

		BOARD DATE: 16 March 2023

		DOCKET NUMBER: AR20220004558


APPLICANT REQUESTS:  His bad conduct discharge (BCD) be upgraded 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the 3-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 he sold a $10.00 bag of marijuana to an undercover agent. The 
price he paid was too high and he has paid for that mistake a thousand times over. He 
knows what he did was wrong, and it cost him his career. He asks that the Board forgive 
him and upgrade his discharge to allow him to receive his benefits. He has not been in 
any trouble since his discharge.

3.  The applicant enlisted in the Regular Army on 25 October 1978. He reenlisted on 
16 October 1981 for 4 years. The highest grade he held was E-4.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform 
Code of Military Justice on the following dates for the indicated offenses:

*	17 August 1979, for wrongfully purchasing merchandise in excess of monthly 
dollar limitations and quantity, while stationed in Korea during the month of June 
1979; his punishment included reduction to E-1
*	28 January 1983, for unlawfully striking Sergeant on the face with his fist, or 
about 22 January 1983 (the indicated continuation sheet is not of record); his 
punishment included reduction from E-4 to E-2,

5.  On or about 16 June 1983, the applicant was apprehended by civilian authorities in 
for possession of marijuana. On 30 June 1983, he was released from civilian 
confinement on bond.

6.  Before a special court-martial at Fort Benning, GA on 31 October 1983, the applicant 
was found guilty of wrongful possession and distribution of 2.54 grams of marijuana on 
or about 10 June 1983; and wrongful possession of 14.88 grams of marijuana on 
15 June 1983. The court sentenced him to reduction to E-1, forfeiture of $300.00 pay for 
6 months, confinement at hard labor for 5 months, and to be discharged with a BCD. 
The sentence was approved on 16 December 1983.

7.  The record of trial was forwarded for appellate review. The U.S. Army Court of 
Criminal Appeals findings are not available for review.

8.  The Fort Benning, GA's Acting Assistant Adjutant General notified the applicant, on 
28 February 1984, that it was the commands intent to place him on excess leave and 
advised him of his options. The applicant was placed on excess leave effective 5 March 
1984 pending appellate review.

9.  Special Court-Martial Order Number 8, issued by Headquarters, U.S. Army Infantry 
Center and Fort Benning on 12 March 1985, noted that the applicant's sentence had 
finally been affirmed and ordered the BCD duly executed.

10.  The applicant was discharged on 22 March 1985, under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a 
result of court-martial. His DD Form 214 (Certificate of Release or Discharge from 
Active Duty) confirms his service was characterized as bad conduct. He had 6 years 
and 8 days of net active service with 376 days of lost time.

11.  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.

12.  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:

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, 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. The Board concurs with the corrections described 
in the Administrative Note(s) below.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


?
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by making the 
corrections described in Administrative Note(s) below.

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrading the bad conduct discharge.

	 
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.


ADMINISTRATIVE NOTE(S):

A review of the applicant's record shows his DD Form 214 is missing important entries 
that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 
by adding the following to item 18 (Remarks):

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 781025 UNTIL 811015


REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within 3 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 3-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 that 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. A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

	c.  Chapter 3 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. 
The service of Soldiers sentenced to a BCD is to be characterized as bad conduct.

	d.  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.

3.  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.)	AR20220004558


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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