IN THE CASE OF: BOARD DATE: 17 January 2024 DOCKET NUMBER: AR20230006736 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under conditions other than honorable characterization of service and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 9 March 2023 * character reference, from D.M., undated 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 AR2004100208 on 10 August 2004. 2. The applicant states, in effect, he asks not to be judged by the mistakes made in his past. He fell prey to drugs and suffered drug usage, he attended a detox facility only to be released back into his unit. The drug abuse was so rampant in his unit that heroin was used or present in formations. He turned himself in and was put in the stockade for over 6 months before being released. a. He believes that being an African American Soldier caused him to be unfairly discriminated against. His fellow Soldiers were afforded an opportunity of a Chapter 10 discharge or were released on more favorable conditions. b. He regrets the errors he made while serving in Germany. Since returning home, he has become a contributing member of his church and community. He retired from his place of employment with over 17 years of service. He has 5 children, 16 grandchildren, and 5 great grandchildren, which is the reason for his requested discharge upgrade, so they can be proud of him for a more favorable discharge. 3. The applicant enlisted in the Regular Army on 22 January 1975 for a 3-year period. He was awarded military occupational specialty of 31M (Multichannel Communications Equipment Operator), the highest rank he attained was private first class (PFC)/E-3. 4. The applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following: a. On 11 June 1975, for violating a lawful general regulation, by consuming wine on or about 23 April 1975. His punishment imposed was forfeiture of $50.00 and extra duty for 7 days. b. On 20 July 1976, for failure to go to his appointed place of duty, the Commander's formation, on or about 12 July 1976. His punishment imposed was 14 days extra duty and reduction to private (PV2)/E-2 suspended for 90 days. 5. Before a special court-martial on 24 February 1977 the applicant was arraigned and tried for the following charge(s) and specification(s): a. Charge I, violating Article 121 of the UCMJ, by stealing a multicolored leather coat, a value of $85.00, property of the U.S. Army and Air Force Exchange Service. b. Charge II, violating Article 134 of the UCMJ, by wrongfully having in his possession .27 grams more or less of a habit-forming narcotic drug (heroin) on or about 2 August 1976. c. Charge III, violating Article 92 of the UCMJ, for violating a lawful general order by having a hypodermic syringe in his possession without authority, indirectly purchasing five quarts of whiskey and four cartons of cigarettes, and by knowingly and without authority possessing an altered ration card. d. An additional charge, violating Article 86 of the UCMJ, for on or about 17 November 1976 absenting himself without authority until on or about 15 December 1976. e. He plead guilty and was found guilty of all the charges and specifications except for pleading not guilty for the specification of knowingly and without authority possessing an altered ration card, he was found not guilty. The additional charge of being absent without authority was changed to read from 17 November 1976 until on or about 23 November 1976. 6. The applicant was sentenced to reduction to the grade of E-1, forfeiture of $249.00 pay per month for three months, confinement at hard labor for 30 days, and discharge from the service with a bad conduct discharge. The sentence was approved on11 April 1977. 7. The record of trial was forwarded for appellate review, the findings of guilty and sentence were affirmed on 29 September 1978. 8. Special Court-Martial Order Number 63, issued by the Department of the Army, Headquarters US Army Training Center and Fort Dix, Fort Dix, New Jersey, dated 6 October 1978, ordered the sentence to be duly executed. 9. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 8 March 1979, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11 (Dishonorable and Bad Conduct Discharge), in the grade of E-1. His service was characterized as under conditions other than honorable. He was assigned separation program designator "JJD" and reentry code "RE-4". He completed 4 years and 19 days of net active service, with 29 days of lost time. 10. He additionally provides a character reference from , stating they worked together, and he did a wonderful job at helping his coworkers, he was punctual and did not miss work. He is a nice person who had a good relationship with everyone and was an asset to the company. 11. On 10 August 2004, the ABCMR considered the applicant's request for an upgrade of his characterization of service, the Board denied his request stating the evidence presented did not demonstrate the existence of a probable error or injustice. The Board determined that the overall merits of the case were insufficient as a basis for correction for his records. 12. 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. 13. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 noted the applicant’s acceptance of responsibility for his actions and was remorseful with his application, demonstrating he understands his actions were not that of all Soldiers. The Board commends the applicant for his achievements and retirement and recognizes the applicant’s impact in his community and to his family. However, the Board determined based on the applicant’s record there is 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. 2. The Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge. Based on this, the Board found reversal of the previous Board determination is without merit and denied relief. 3. The applicant’s request for a personal appearance hearing 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 hearing is not necessary to serve the interest of equity and justice in this case. 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 AR2004100208 on 10 August 2004. 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. 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. 2. 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. b. 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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 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. The service of Soldiers sentenced to a bad conduct discharge was to be characterized as under other than honorable conditions. 4. 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/NR) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230006736 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1