IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20160009204 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X X: X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20160009204 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 bad conduct discharge to a general discharge. 2. The applicant states he was arrested by Alexandria, VA, police department for distribution of a controlled substance (one rock of crack cocaine). He made this mistake as an attempt to gain money for travel to Dayton, OH, from Virginia. His wife left him and took their kids back to Dayton, OH, and he wanted to follow her in hopes of reconciling. He was given a small amount of crack cocaine to sell by an acquaintance off post. He had his civilian trial in January of 1988 and was acquittal of all charges because all evidence was circumstantial. The U.S. Army Criminal Investigation Command was waiting for him when he exited the courthouse and placed him under arrest. He was detained in correctional custody under Uniform Code of Military Justice (UCMJ) provisions. He was prosecuted under the UCMJ and had a hearing in May of 1988. The presiding judge sentenced him to a bad conduct discharge with no institutional incarceration. This ruling still haunts him today. He would like consideration of upgrading his discharge from bad conduct to general because of the civilian case that was dropped. He is very remorseful for his actions and was quite immature then. He has tried to be a better man and would like to get a more positive view of his military service. This was his second enlistment and he had a plan to make it a career. 3. The applicant provides his 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. The applicant enlisted in the Regular Army (RA) on 11 October 1984. He held military occupational specialty 75E (Personnel Actions Specialist). He was honorably discharged on 7 June 1987 for immediate reenlistment. 3. He reenlisted for a 3-year term on 8 June 1987. He served in Korea from 15 September 1986 to 12 September 1987. Following completion of his Korea tour, he was reassigned to the 554th Engineer Battalion, Fort Belvoir, VA. 4. On 20 and 21 June 1988, the applicant was tried by a special court-martial appointed by the U.S. Army Engineer Center, Fort Belvoir. His service record is void of the court-martial order that convicted him. His record does contain: a. An agreement, dated 17 June 1988, wherein the applicant, his defense counsel, and court-martial convening authority agreed that the court-martial convening authority would disapprove any portion to confinement which was in excess of 3 months and that all other lawfully imposed punishment could be approved. b. A DA Form 4430-R (Report of Result of Trial) that shows on 20 and 21 June 1988, the applicant was tried by a special court-martial for the charge and its specification of wrongful distribution of cocaine. He pled guilty and was found guilty of the charge and its specification. The court sentenced him to a bad conduct discharge. c. A request and approval to place the applicant on indefinite excess leave pending appellate review of his case. d. Special Court-Martial Order Number 1, issued by Headquarters, U.S. Army Fort Belvoir, on 21 June 1989, states, in effect, that with post-trial reviews having been completed, the bad conduct discharge would be executed. 5. The applicant was discharged on 21 June 1989. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Enlisted Personnel Separations), chapter 3, with a bad conduct discharge. This form further shows he completed 4 years, 8 months, and 11 days of active service. This form also shows: a. He was awarded or authorized the Army Service Ribbon, Army Good Conduct Medal, and Overseas Service Medal. b. Item 18 (Remarks) lists his excess leave from 4 August to 21 June 1988. 6. There is no indication the applicant petitioned the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 provides 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 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. c. Paragraph 3-7c provides that 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, security reasons, or in lieu of trial by court martial in certain circumstances. d. Paragraph 3–11 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. 2. 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 Uniform Code of Military Justice, 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 Uniform Code of Military Justice 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. 3. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR will not consider any application if it determines that an applicant has not exhausted all available administrative remedies. 4. Army Regulation 635-5 (Separation Documents) prescribed the separation documents which were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. The Remarks block is used for entries required by Department of the Army for which a separate item is not available on the form and for completing entries that are too long for their blocks. a. The version of the regulation (1 July 1981) in effect at the time of his discharge required an entry in item 18 (Remarks) to show a list of enlistment periods for which a DD Form 214 was not issued. For example: Immediate reenlistments this period: 761210-791001; 791002-821001. b. The version of the regulation (2 October 1989) in effect after his discharge stated that the first entry in block 18 lists reenlistment periods for which a DD Form 214 was not issued, if applicable, e.g., "Immediate reenlistments this period: 761218-791001; 791002-821001." However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," the following statement will appear as the first entry in block 18, "Continuous honorable active service from (first day of service for which a DD Form 214 was not issued, e.g., 761218) until (date before commencement of current enlistment, e.g., 821001)"; then enter the specific periods of reenlistments as prescribed above. DISCUSSION: 1. With respect to the applicant’s character of service: a. He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial. The appellate review appears to have been completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. b. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this 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. 2. With respect to his first period of service: a. At the time of his discharge in June 1989, the regulation governing preparation of the DD Form 214 only required an entry in item 18 pertaining to enlistment periods for which a DD Form 214 was not issued. His first enlistment from 11 October 1984 to 7 June 1987 is not listed in item 18 of his DD Form 214. b. After his discharge the regulation was changed. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "honorable," a statement will appear as "Continuous honorable active service from (first day of service for which a DD Form 214 was not issued) until (date before commencement of current enlistment)" as well as the specific periods of reenlistments as prescribed above. 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 adding to item 18 of the applicant's DD Form 214 the entries: * Immediate Reenlistment: 19870608 -198890621 * Continuous Honorable Service: 19841011 - 19870607 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 applicant's bad conduct discharge. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160009204 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009204 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2