IN THE CASE OF: BOARD DATE: 26 July 2023 DOCKET NUMBER: AR20230000273 APPLICANT REQUESTS: reconsideration of his previous request to upgrade his bad conduct characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), 13 September 2022 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 AR20160013731 on 3 April 2019. 2. The applicant provides a new argument which was not previously considered by the Board. The applicant states, he was wrongfully arrested and charged with selling heroin, which he was innocent. The Army Criminal Investigation Division (CID) report was racially motivated to arrest him. 3. The applicant enlisted in the regular Army on 12 August 1977. 5. On 1 November 1978, the applicant accepted field grade non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for behaving with disrespect towards his superior commissioned officer, by saying to him, “it is none of your business, and your asking for trouble” and “if you want it come and get it, mother fucker,” or words to that effect, and for disobeying a lawful order, on or about 29 October 1978. 6. His punishment consisted of reduction to the rank/grade Private (PV2)/ E-2 (suspended for 6 months), forfeiture of $233.00 pay per month for 2 months (suspended for 6 months), 30 days extra duty and 7 days restriction. 6. General Court Martial Order Number 90, published by Headquarters (HQ), VII Corps, NY, dated 26 August 1980, shows the applicant was convicted of the following offense/specifications: a. Charge: Article 134 (General Article): (1) Specification 1: the applicant did, on or about 19 February 1980, wrongfully have in his possession .02 grams, more or less, of a habit-forming narcotic drug, heroin. (2) Specification 2: the applicant did, on or about 19 February 1980, wrongfully transfer .02 grams, more or less, of a habit-forming narcotic drug, heroin. (3) Specification 3: the applicant did, on or about 19 February 1980, wrongfully sell .02 grams, more or less, of a habit-forming narcotic drug, heroin. b. The sentence was adjudged on 14 July 1980. His sentence consisted of forfeiture of all pay and allowances, to be discharged from service with a bad conduct discharge, and to be confined at hard labor for eleven months. 7. On 26 March 1981, the applicant elected to waive his right to a separation medical examination. 8. General Court Martial Order Number 333, published by HQ, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 22 May 1981, shows the applicant’s sentence to bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for eleven months was affirmed and the sentence pertaining to confinement had been served. 9. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 15 June 1981, under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, in the rank/grade of private (PV1)/E-1. His service was characterized as bad conduct, and he received a separation code of JJD and a reentry code of 4. He completed 3 years, 1 month and 21 days of net active service with lost time from 14 July 1980 to 11 August 1980. Additionally, his DD Form 214 does not list any decorations or awards. 10. The applicant did not provide, nor did his service record include any evidence of a CID investigation. 11. There is no indication the applicant applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 12. The ABCMR considered the applicant's request to upgrade his bad conduct characterization of service in ABCMR Docket Number AR20160013731 on 3 April 2019. A letter dated 11 April 2019 shows the ABCMR notified the applicant that his previous request for upgrade of his discharge was denied. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. 13. The pertinent Army regulation in effect at the time states a member will 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. 14. The Board should consider the applicant's new argument and his overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not 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 his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 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 noted, the applicant provided insufficient evidence of post- service achievements or character letters of support that could attest to his honorable conduct that might have mitigated the discharge characterization. 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 and reversal of the previous Board decision is without merit. Therefore, relief was denied. 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 Board found 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 AR20160013731 on 3 April 2019. 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. AR 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b stated 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. b. Chapter 11, paragraph 11-2 states, a member will 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. 2. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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) AR20230000273 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1