BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150017620 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ _x_______ _x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150017620 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 deleting the entry in item 18 of his DD Form 214: a. "Reenlistment this period of time 791114-821013" and b. adding the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 791114-821013//IMMEDIATE REENLISTMENT THIS PERIOD 821014-860910." 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 the upgrade of his dishonorable 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. BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150017620 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 an upgrade of his dishonorable discharge. 2. The applicant states, in effect, that he completed an honorable period of service from 1979 to 1982 and he was a decorated Ranger. He was charged with having a trace amount of drugs on him as defined under Nancy Reagan’s War on Drugs campaign. During his trial, he contends that his entire chain of command showed up for him and the judge cried but there was a general officer on the jury panel. He was confined to Fort Leavenworth, KS. 3. The applicant provides no additional evidence. 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. He enlisted in the Regular Army on 14 November 1979 and the highest rank held was specialist four (SP4)/E-4. He served as an infantryman and radio operator. 3. He was honorably discharged on 13 October 1982 for the purpose of immediate reenlistment. He reenlisted on 14 October 1982. 4. On 21 February 1985, a general court-martial (GCM) found the applicant guilty of three specifications of violating Article 112a, for distributing: * an unknown amount of marijuana in November 1984 * an unknown amount of heroin in December 1984 * .30 grams of heroin on 5 February 1985 5. The resulting sentence was a dishonorable discharge, confinement for 15 years, forfeiture of all pay and allowances, and a reduction to private/E-1. This sentence was adjudged on 11 April 1985. 6. The same orders show the convening authority approved only so much of the sentence adjudged on 11 April 1985, except for the part of the sentence extending to a dishonorable discharge. 7. On 25 February 1986, the United States Army Court of Military Review on consideration of the entire record held the findings of guilty and sentence as approved by the convening authority correct in law and fact. Accordingly, those findings of guilty and the sentence were affirmed. 8. On 24 July 1986, Headquarters, U.S. Disciplinary Barracks, U.S. Combined Arms Center, Fort Leavenworth, KS, GCM Order Number 275 directed that, Article 71c having been complied with, the applicant’s dishonorable discharge be duly executed. 9. On 10 September 1986, applicant was discharged by reason of court-martial with a dishonorable discharge under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations). The DD Form 214 he was issued shows he completed a total of 5 years, 4 months, and 27 days of creditable active military service and had lost time from 11 April 1985 to 10 September 1986. 10. Item 18 (Remarks) of his DD Form 214 contains the entry "Reenlistment this period of time 791114-821013." REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable discharge or bad conduct discharge. It stipulated that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a GCM and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, 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. 3. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. The regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. 4. Paragraph 2-4h(18)(c) of the same regulation states that for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter in item 18 "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)." However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, then enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. DISCUSSION: 1. The applicant requests that his dishonorable discharge be upgraded. 2. By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge. 3. The applicant was found guilty by a GCM of distributing marijuana and heroin resulting in his dishonorable discharge. The applicant argues, in effect, that he was found to have had only a trace amount of drugs. However, the amount was unknown on two specifications, which does not necessarily equate to a trace amount. Nevertheless, distribution of an illegal drug in any amount is a serious offense punishable by court-martial. 4. The applicant had more than one enlistment period during the time covered by his DD Form 214. He completed an honorable period of service from 4 November 1979 to 13 October 1982 and was separated with a dishonorable character of service. The regulation in effect at the time made no provision to issue a DD Form 214 when there was no break in service. 5. The current regulation states that Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, then enter in item 18 of the DD Form 214 "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service for which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Current regulatory guidance may be applied in this case to afford the applicant an entry on his DD Form 214 documenting his period of honorable service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017620 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017620 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2