IN THE CASE OF: 

		BOARD DATE: 22 March 2023

		DOCKET NUMBER: AR20220007636


APPLICANT REQUESTS: upgrade of his bad conduct discharge (BCD) to general, 
under honorable conditions, and amend his separation code. Additionally, he requests 
his narrative reason for separation be amended to “Secretarial Authority”.

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

*	DD Form 149 (Application for Correction of Military Record)
*	Attorney Brief
*	Self-Authored Statement
*	Exhibit 1 - Court Martial Record
*	Exhibit 2 - Universidad Nacional Autonoma De Honduras form

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 requests a character of service change from bad conduct to 
honorable.

3.  The applicant enlisted in the Regular Army on 2 May 1989 for three years. His 
military occupational specialty 13B (Field Artillery Crewman). He was not a U.S. citizen.

4.  The applicant’s complete record is not available for review; however, the applicant 
provides sufficient documents for consideration of the case.

5.  A DA Form 458 (Charge Sheet) shows charges were preferred against the applicant 
for violation of the Uniform Code of Military Justice (UCMJ) on 23 March 1992, for 
wrongfully distributing 2.08, more or less, of marijuana on or about 11 December 1991. 
The charges were referred for trial to by special court martial.

6.  Before a special court-martial on 2 June 1992, at Fort Drum, NY, the applicant was 
found guilty of wrongful distribution of 2.08 grams of marijuana on or about 
11 December 1991. The court sentenced him to confinement for 100 days, forfeiture of 
$523.00 pay for three months, reduction to private/E-1, and to be separated from 
service with a BCD.

7.  The applicant was confined by military authority on 2 June 1992.  

8.  The sentence was approved on 17 July 1992 and the record of trial was forwarded 
for appellate review.

9.  The applicant's duty status was returned to present for duty on 26 August 1992. He 
did not desire a separation medical examination on 27 August 1992.

10.  On 29 December 1992, the findings of guilty and the sentence were affirmed by the 
U.S. Army Court of Military Review.

11.  The U.S. Court of Military Appeals denied review of the applicant’s case on 23 April 
1993.

12.  An Involuntary Excess Leave letter shows the applicant did not desire to make a 
request to remain on active duty and did not wish to present matters in his own behalf. 

13.  Special Court-Martial Order Number 12, issued by Headquarters, U.S. Army 
Garrison, Fort Dix, NJ on 27 April 1993, noted that the sentence had been finally 
affirmed and ordered the BCD duly executed.

14.  The applicant was discharged on 1 June 1993. 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-other. His Separation Code was JJD [court martial-other]. His 
characterization of service was bad conduct. He completed 3 years, 10 months, and 
6 days of net active service. He lost time from 2 June 1992 to 25 August 1992. He was 
awarded or authorized the: Army Service Ribbon, Expert Marksmanship Qualification 
Badge with Grenade Bar, Marksman Marksmanship Qualification Badge with Rifle Bar 
(M-16).

15.  The applicant, through counsel provides:

	a.  An attorney brief that states the applicant was living in the U.S. illegally, yet he 
had a desire to serve his adopted country, and hoped through his service he could 
obtain U. S. citizenship. The attorney brief concluded the applicant enlisted in the U.S. 
Army to serve his adopted country. He made one mistake which resulted in a chain of 
events that completely transformed his life. His possession of two grams of marijuana 
resulted in a wrongful distribution charge, BCD, deportation, and inability to lawfully 
immigrate to the U.S. Had the applicant had an effective assistance of counsel as was 
his right under the Sixth Amendment, he would have been warned of a possible 
deportation as a result of his guilty plea. Had his counsel adequately advocated for him, 
he would have received an Article 15 or similiter administrative punishment more 
befitting of the mistake he made. In the interest of justice, the applicant should have his 
BCD upgraded to an honorable discharge which would allow him to apply for citizenship 
in the country he chose to risk his life for.

	b.  A self-authored statement, states there were critical errors made by his defense 
attorney during his court-martial. Had he known the impact a guilty plea would have had 
upon his immigration status, he would never had pled guilty. The only reason he pled 
was to avoid risking serious punishment. But his understanding was based on incorrect 
facts due to his attorney's mistakes. 

       (1)  He was assigned Captain/CPT as his trial defense counsel. CPT noted the 
inequity of the punishment, specifically the fact that Soldiers routinely are chaptered out 
with a under honorable conditions (general) discharge. Nevertheless, he was unable to 
negotiate a general discharge and the only option on the table was a BCD. Leading up 
to the trial, he informed CPT that he was not an American citizen. He explained that he 
hoped by enlisting he could obtain his citizenship through service. He explained how he 
was filled with pride serving in the U.S. and hoped to become a citizen of his adopted 
country. While CPT noted that a BCD would hamper this desire, he failed to note that a 
guilty plea would lead directly and necessarily to his immediate deportation. Had CPT 
informed him that deportation was a required aspect of a guilty plea per Federal law and 
Department of Homeland Security regulations, it would have affected his decision to 
plead guilty. 

       (2)  On or around 3 June 1992, he was sentenced to the BCD and proceeded to 
spend 100 days in confinement. Upon release, he was immediately deported to 
Honduras, his country of origin. From the time of his deportation until 2012 he worked in 
Honduras in the garment industry doing import/export. In 2012, he moved to Haiti where 
he became a manager at an import/export company and remains in this position until 
today. He deeply regrets and is ashamed of the circumstances that led to his court 
martial, however, in light of the failure of his counsel to disclose the implication of a 
guilty plea on his immigration status, and his subsequent deportation, he is submitting 
this application as a request for a discharge upgrade from BCD to Honorable, as well as 
an amendment to the separation code and narrative reason for separation to 
"Secretarial Authority."

	c.  Exhibit 1-Court Martial Record-SPCMO 12, Court of Appeals, Appellate Decision, 
SPCMO 9, Charge Sheet, Action, Stipulation of Fact, Appellate Rights Advisement-
discussed above.

	d.  Exhibit 2-Universidad Nacional Automoma De Honduras form.

16.  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.

17.  Published guidance to the Boards for Correction of Military/Naval Records clearly 
indicates that the guidance is not intended to interfere or impede on the Board's 
statutory independence. The Board will determine the relative weight of the action that 
led to the discharge and whether it supports relief or not. In reaching its determination, 
the Board shall consider the applicant's petition, available records and/or submitted 
documents in support of the petition.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, the Board found that partial relief was warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of her characterization of service.  Upon review of 
the applicant’s petition and available military record, the Board determined there was 
sufficient evidence of in-service mitigating factors to overcome the misconduct. The 
Board found the applicant’s punishment to be harsh and warranted clemency. 

2. 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 determined partial relief was warranted with an upgrade to under other than 
honorable conditions character of service. The Board noted the applicant’s self-
authored letters of post service achievements. Based on this, the Board granted partial 
relief with an upgrade to under other than honorable conditions. 




?
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 

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 upgrade of applicant’s bad conduct discharge (BCD) to 
general, under honorable conditions, amend his separation code.  His narrative reason 
for separation be amended to “Secretarial Authority.


	 
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): Not Applicable


?
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 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 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.  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 (BCM/NR) on 25 July 2018, 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 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220007636


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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