BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150006041 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, an upgrade of her bad conduct discharge or correction of her record to show her first enlistment period was honorable. 2. The applicant states that she served in the U.S. Army from June 1979 to December 1985. She served honorably up until she got into trouble in April 1985. At the time of her discharge she was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that indicated her entire period of military service was dishonorable. a. She states that the incident that led to her discharge involved a girl who she thought was her friend. The girl brought her boyfriend to the applicant's house. The boyfriend and applicant smoked a "joint" (marijuana), and the girl also wanted to smoke. The applicant states that she was young and immature and, as a result, she and the girl's boyfriend went and purchased some marijuana (while on a military installation). b. Shortly thereafter, the applicant was arrested and charged by the police. During her questioning she was told that it would help her situation if she told the police who she had purchased the marijuana from. So, she told them. She soon found out that she was lied to because the person (seller) was arrested, but the applicant's situation did not improve. She felt she had risked her life, but had received nothing in return. She refused to disclose any more information. c. Her lawyer did not offer argument or evidence in her defense during the court-martial nor did he object to anything offered in evidence by the government. d. She states that the use of marijuana was prevalent on post and she saw her use of marijuana as normal. She adds that she was not offered any type of rehabilitation. e. She also states that she has not been in trouble since she was discharged from the U.S. Army and believes the Department of Veterans Affairs (VA) incorrectly denied her claim for benefits. 3. The applicant provides copies of: * two DD Forms 4 (Enlistment/Reenlistment Documents – Armed Forces of the United States) with annexes * four certificates * DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. A DD Form 4 shows the applicant enlisted in the U.S. Army Reserve on 18 November 1978 for a period of 6 years. At the time she was 18 years of age. On 18 June 1979, she further enlisted in the Regular Army (RA) and entered active duty for a period of 4 years with a U.S. Army training option for military occupational specialty (MOS) 71N (Traffic Management Coordinator). 3. A review of her military personnel records shows, in pertinent part, she was: * awarded MOS 71N in September 1979 * assigned overseas in Germany from 12 October 1979 to 7 October 1981 * promoted to specialist four (SP4)/pay grade E-4 on 1 February 1981 * awarded the Army Good Conduct Medal (1st Award), Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar 4. U.S. Army Transportation Center, Fort Eustis, VA, Orders 059-059, dated 25 March 1983, discharged the applicant from the RA on 6 April 1983 to reenlist in the RA. 5. A DD Form 4 shows the applicant reenlisted in the RA on 7 April 1983 for a period of 6 years with a station of choice (Fort Eustis, VA) reenlistment option. 6. Headquarters, U.S. Army Transportation Center, Fort Eustis, VA, General Court-Martial Order Number 12, dated 22 November 1985, shows the applicant was tried by a general court-martial on 29 August 1985. a. She was found guilty of: * violation of Article 112a (Wrongful use, possession, etc., of controlled substances), four specifications, for – * on 1 February 1985, wrongfully distributing a Schedule I controlled substance (approximately 5 grams of marijuana) to another Soldier * on 1 February 1985, wrongfully using a Schedule I controlled substance (some amount of marijuana) * on 6 March 1985, wrongfully distributing a Schedule I controlled substance (approximately 22 grams of marijuana) to another Soldier * on 5 April 1985, wrongfully distributing a Schedule I controlled substance (10 doses of lysergic acid diethylamide (LSD)) to another Soldier * violation of Article 81 (Conspiracy) for, on 5 April 1985, conspiring to wrongfully distribute a Schedule I controlled substance (LSD) to another Soldier b. The findings of guilty as to the first three specifications of violation of Article 112a were based on the applicant's plea of guilty. She pled not guilty to the fourth specification of Article 112a and to the charge of violation of Article 81. c. She was sentenced to be reduced to the grade of private (E-1), to forfeit $413.00 per month for four (4) months, to be confined at hard labor for four (4) months, and to be discharged with a bad conduct discharge. d. On 22 November 1985, the General Court-Martial Convening Authority approved the sentence, except for the bad conduct discharge which was suspended pending appellate review. 7. The U.S. Army Court of Military Review (CMR) reviewed the applicant's case. a. The CMR noted that following sentencing instructions, which included the options of restriction, hard labor without confinement, and confinement, a member asked whether restriction could be imposed along with a bad conduct discharge. The trial judge responded that restriction should be considered only if the applicant were retained in service. This was an erroneous instruction. However, applicant's counsel made no objection. The government maintained that trial defense counsel's failure to object waived the error; the applicant insisted that it did not. The CMR found the issue irrelevant because the CMR was satisfied that the applicant suffered no substantial prejudice in any event. b. The applicant also contended that the erroneous instruction deprived her of the chance of a sentence to a bad conduct discharge plus restriction instead of the bad conduct discharge plus confinement, which she received. The CMR disagreed noting that the trial defense counsel argued strenuously for a sentence which included no confinement, stressing the fact that the applicant was the unmarried mother of two young children. Notwithstanding these arguments, the members sentenced the applicant to four months' confinement. From this, the CMR concluded that the members were absolutely convinced that confinement was necessary under the circumstances in this case. Furthermore, the instructions left the members free to adjudge hard labor without confinement, if they thought some form of restraint less severe than confinement was appropriate. That fact shows that they would not have adopted the more lenient punishment of restriction had it been available to them. c. The CMR affirmed the findings of guilty and the sentence on 25 February 1986. d. The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed on 15 May 1986. 8. The applicant's DD Form 214 shows she was separated on 27 May 1986 with a bad conduct discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial. It also shows in: * item 12 (Record of Service) – * block a (Date Entered Active Duty This Period): 7 April 1983 * block b (Separation Date This Period): 27 May 1986 * block c (Net Active Service This Period): 2 years, 10 months, 12 days * block d (Total Prior Active Service): 3 years, 9 months, 19 days * item 18 (Remarks): Excess leave (creditable for all purposes except pay and allowances) – 173 days: 6 December 1985 – 27 May 1986 (It does not show a continuous period of honorable service) * item 29 (Dates of Time Lost During This Period): 29 August 1985 – 5 December 1985 (i.e., 99 days or 3 months and 9 days) 9. In support of her application the applicant provides the following additional documents: a. DA Form 87 (Certificate of Training) showing she successfully completed the 40-hour Battalion Training Management System, Trainer's Workshop, on 17 April 1981. b. Certificate of Achievement for outstanding performance with the Army Air Traffic Coordinating Office, 3rd Movement Region, 4th Transportation Command, U.S. Army Europe and Seventh Army, from 17 October 1979 to 7 October 1981. c. Certificate of Training for successfully completing the Noncommissioned Officers Leadership School, Class 11-82, from 19 August 1982 to 16 September 1982. d. Certificate of Achievement, issued on 8 August 1983, for exceptional achievement during the 24th Transportation Battalion Outstanding Soldier of the Month Board. e. DA Form 664 (Service Member's Statement Concerning Compensation from the VA), dated 6 December 1985, that shows the applicant was advised she was entitled to file an application for compensation from the VA after her separation from the Army. f. Decatur County Sheriff's Office, Bainbridge, GA, Criminal History Consent Form, showing she requested her criminal history information. On 31 March 2015 the Decatur County Sheriff's Office indicated there was "No Record." 10. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 prescribes the policies and procedures for separating members with a bad conduct discharge. It stipulates that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Chapter 3, 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. c. Chapter 3, paragraph 3-7b, provides that 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. 11. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. a. Chapter 2 contains guidance for preparation of the DD Form 214. It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the official military personnel file. b. Paragraph 2-1 states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. It shows item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks. (1) For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)." (2) However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." 12. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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. Title 38, U.S. Code (Veterans' Benefits) governs the VA and prescribes the rules and regulations which are necessary or appropriate to carry out the laws administered by the VA. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that her bad conduct discharge should be upgraded because she was young and immature at the time of the incident and her lawyer provided an inadequate defense during her court-martial. 2. The applicant successfully completed training, was awarded MOS 71N, attained the rank of SP4 (E-4), and was awarded the Army Good Conduct Medal (1st Award) after completing 3 years of active duty service, which demonstrates her capacity for honorable service and argues against her contention that she was young and immature. 3. The evidence of record shows that during her court-martial the applicant pled guilty (emphasis added) to three specifications of violation of Article 112a and that she was found guilty of all charges and specifications. The evidence of record also shows her defense counsel argued strenuously for a sentence which included no confinement. Thus, her contention regarding inadequate defense/ representation by counsel is not supported by the evidence of record. 4. The applicant's trial by general court-martial was warranted by the gravity of the offenses for which she was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the appellate review. 5. The applicant's contention regarding her post-service conduct was considered. However, her post-service conduct is insufficient as the sole basis for changing or upgrading her discharge. 6. The applicant is advised that the administration and granting of veterans benefits does not fall under the purview of the ABCMR. 7. The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. a. The applicant enlisted in the RA on 18 June 1979 and she reenlisted in the RA on 7 April 1983. b. A DD Form 214 was not authorized for issuance when she was discharged on 6 April 1983 to reenlist in the RA. c. For Soldiers who have multiple continuous reenlistments and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment. d. Item 18 of the applicant's DD Form 214 does not contain such an entry because the date of entry shown on her DD Form 214 is incorrect. However, the sum of the net active service and total active service shown on her DD Form 214 accurately reflects her total creditable active service. e. A calculation of her creditable net active service from 18 June 1979 through 27 May 1986 shows the following (years, months days): 03 09 19 total prior active service (18 June 1979 – 6 April 1983) + 02 10 12 net active service (7 April 1983 – 27 May 1986) minus time lost = 05 19 31 or 06 08 01 total creditable active service 8. In view of the above, it would be appropriate to correct the applicant's DD Form 214 by issuing a DD Form 215 (Correction to DD Form 214) showing in item 12 she entered active duty on 18 June 1979, was separated on 27 May 1986, and credited with 6 years, 8 months, and 1 day of net active service and had no prior active service. Also, it would be appropriate to correct item 18 to show her continuous period of honorable active service from 18 June 1979 through 6 April 1983. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___X_____ __X______ ___X_ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 issuing a DD Form 215 to correct: * item 12 by deleting the current entries in the blocks specified below and adding in – * block a: 79 06 18 (18 June 1979) * block b: 86 05 27 (27 May 1986) * block c: 6 years, 8 months, 1 day * block d: 0 years, 0 months, 0 days * item 18 by adding: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 18 JUNE 1979 UNTIL 6 APRIL 1983" 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 of her discharge. _______ _ X _______ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20150006041 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006041 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1