IN THE CASE OF:  
 
  BOARD DATE: 8 August 2023 
 
  DOCKET NUMBER: AR20230005707 
 
 
APPLICANT REQUESTS:   
 
• reconsideration of his prior request for an upgrade of his bad conduct discharge (BCD) to an honorable discharge 

• a personal appearance before the Board 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Personal statement  

• Letters of Appreciation (3) 

• Letter of Commendation  

• Certificates of Achievement (3) 

• Certificates of Training 


 
FACTS: 
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's cases by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20070010871 on 12 February 2008 and AR20170003233 on 4 November 2019. 
 
2.  The applicant states: 
 
 a.  On numerous occasions over the past 40 years, he has been trying to upgrade his discharge and receive a fair trial. The only conclusion he can come to is that it was because he was a black Soldier. 
 
 b.  He contends he only saw lawyer once in 4 months prior to his trial, nothing was prepared. The trial was put together with no notice, no witnesses were there on his behalf, his accuser was not present, and the charges were “jacked up.” 
 
3.  The applicant's contention of inadequate counsel is a new argument; however, the documents provided were available and considered at the time of both of his prior reviews.  
 
4.  The applicant enlisted in the Regular Army on 16 January 1980, for 3 years, completed training, and was awarded military occupational specialty 16R (ADA Short Range Gunnery Crewman). He served in Germany 14 November 1981 to 14 January 1983 and the highest grade he held was E-4.  
 
5.  He was convicted by a special court-martial on 12 January 1983 for: 
 
 a.  On or about 2 September 1982, wrongful possession of 1 gram,·more or less, of marijuana in the hashish form. 
 
 b.  On or about 2 September 1982, wrongful transference of 1 gram, more or less, of marijuana in the hashish form. 
 
 c.  On or about 2 September 1982, wrongfully sell 1 gram,·more or less, of marijuana in the hashish form. 
 
 d.  He was sentenced to reduction to E-1, forfeiture of $250.00 per months for 4 months, confinement for 4 months, and to be discharged with a BCD.  
 
6.  On 7 March 1983, the convening authority approved the sentence and except for that part of the sentence extending to the bad conduct discharge, ordered the sentence executed. 
 
7.  The record of trial was forwarded to the U.S. Army Court of Military Review. 
 
8.  On 30 June 1983 the U.S. Army Court of Military Review affirmed the finding of guilty and the sentence and directed that the applicant's Social Security Number as shown on Special Court-Martial Order 62 be corrected.  
 
9.  Special Court-Martial Order Number 675, issued by Headquarters United States Army Correctional Activity, Fort Riley, KS, on 2 November 1983, noted after Article 71 (c) was complied with and the sentence was affirmed, ordered the bad conduct discharge executed. 
 
10.  The applicant was discharged on 16 November 1983, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3, as a result of court-martial conviction. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms his service was characterized as bad conduct 
and shows he had 3 years, 7 months, and 8 days of net active service with 225 days in excess leave and two periods of lost time totaling 84 days.  
 
11.  On 12 February 2008, the Board reviewed and denied his request for an upgrade of his discharge. The Board determined: 
 
 a.  Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 
 
 b.  The applicant's contentions are noted; however, he failed to provide sufficiently mitigating evidence to warrant a change in his discharge. In view of the nature of his misconduct, his type of discharge is consistent with his offenses. Further, his contentions relate to evidentiary and procedural matters which should have been raised and conclusively adjudicated at the time of his court- martial and do not provide a basis for clemency. 
 
12.  On 4 November 2019, the Board reconsidered and again denied his request for an upgrade of his discharge.  
 
 a.  The Board carefully reconsidered the applicant’s request, supporting documents, evidence in the records, and published Department of Defense (DOD) 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.  
 
 b.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. 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. 
 
13.  By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.   
 
14.  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. 
13.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 
 
BOARD DISCUSSION: 
 
1.  The Board determined 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. 
 
2.  After reviewing the application and all supporting documents, the Board found that relief was partially warranted. The Board carefully considered the applicant’s 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.  
 
 a.  The applicant's trial by a court-martial was warranted by the gravity of the offense charged (possession, transfer, and sale of illegal drugs). His conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was given a bad conduct discharge pursuant to an approved sentence of a court-martial.  The appellate review was completed, and the affirmed sentence was ordered duly executed.  
 
 b.  The applicant provided sufficient evidence of post-service achievements in the form of multiple Letters Appreciation/Commendation and Certificates of Achievement/Training, which the Board considered persuasive in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the applicant’s service id not rise to the level required for an honorable characterization of service; however, a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. 
 
 
 
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
xx: xx: xx: GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
: : : DENY APPLICATION 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
1.  The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Dockets Number AR20070010871 on 12 February 2008 and AR20170003233 on 4 November 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 16 November 1983 showing his character of service as Under Honorable Conditions, General. 
 
• Separation Authority: No Change 

• Separation Code: No Change 

• Reentry Code: No Change 

• Narrative Reason for Separation: No Change 


 
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 characterization of his discharge to fully honorable 
 
  8/8/2023XGabriele BarrettCHAIRPERSONSigned by: USA

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.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for the correction of military records.  
 
 a.  Paragraph 2-9 states 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. 
 
 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. 
 
 c.  Paragraph 2-15a governs requests for reconsideration. This provision of the regulation allows an applicant to request reconsideration of an earlier decision of the ABCMR if the decision has not previously been reconsidered. The applicant must provide new evidence or argument that was not considered at the time of the ABCMR's prior consideration. 
 
2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.   
 
 a.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of the 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 (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
 
 c.  Paragraph 3-7c (Under Other Than Honorable Conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or in lieu of trial by court martial. 
 
 d.  Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed, and the affirmed sentence ordered duly executed. 
 
3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice.  With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department.   
4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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.  
 
 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//