ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    2 May 2019

	DOCKET NUMBER:  AR20160015134


APPLICANT REQUESTS: upgrade of his dishonorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Congressional correspondence
* Social Security Card
* Driver's License
* Multiple Character Reference Affidavits 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he wants his dishonorable discharge upgraded to honorable because he was addicted to heroin with no treatment.  He was addicted at a young age in the Army and opposed to the Army helping him or providing treatment.  He was punished and placed in prison without any legal representation or guidance.  He did not receive treatment and was punished for something introduced to him in the Army. 

3.  The applicant provides a driver's license and a social security card.  He also provides multiple character reference letters, dated on miscellaneous dates in 2016, from a variety of friends and relatives.  The letter authors opine: 

* the applicant is an honest and determined individual who reaches out to others
* he is an outstanding and reputable person who is very active in the community 
* he has an impeccable character and is an outstanding citizen
* he is a law-abiding citizen who has been steadily employed in various jobs
* he helps homeless veterans and builds positive relationships in the community 
* he is a role model and great leader who helps those on the wrong path 
* he has been a consistent role model for the young men in the family 
* he is deserving of the Presidential Pardon 
* since his mistake, he has graduated from college and received a college degree 
* he was a young man, trying to find his place in a racist society 
* he has been a productive member of society and a great asset to the community 
* he acts in a positive way and is committed to helping others 
* he has changed his wife' life since they were married; he became a best friend and a good husband
* he is a trustworthy and a dependable person who is always there when needed
* he is a very focused person who always gets the job done 

4.  Review of the applicant's service records shows: 

	a.  19 March 1968 - inducted into the Army of the United States. 

	b.  18 November 1968 - convicted by a special court-martial of one specification of being absent without leave (AWOL) from 4 to 30 October 1968.  The court sentenced him to confinement at hard labor for 6 months and forfeiture of $25 pay for 6 months.  The convening authority approved the sentence on 19 November 1968.   

	c.  28 April 1969 - convicted by a summary court-martial of being AWOL from 7 April to 9 April 1969.  The court sentenced him to reduction to E-1 and confinement at hard labor for 14 days.  The convening authority approved the sentence on 2 May 1969. 

	d.  29 October 1970 - convicted by a general court-martial of one specification of wrongfully possessing heroin and one specification of wrongfully selling heroin.  The court sentenced him to a dishonorable discharge and confinement at hard labor for 2 years. 

	e.  30 April 1971 - the convening authority approved the sentence, and except for the dishonorable discharge, he ordered it executed.  The convening authority also ordered the record of trial forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.  

	f.  22 February 1972 - the U.S. Army Court of Military Review affirmed the finding of guilty and only so much of the sentence as provided for a dishonorable discharge and confinement at hard labor for one year and 8 months.  

	g.  1 March 1972 - Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS published General Court-Martial Order Number 240.  It shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge sentence executed. 

	h.  1 March 1972 - the applicant was discharged from the Army.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged as a result of court-martial under the provisions of chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  

* his service was characterized as dishonorable and he was issued a Dishonorable Discharge Certificate 
* he completed 1 year, 9 months, and 4 days of active service during this period; he had 155 days of lost time before ETS (expiration term of service) and 644 days of lost time subsequent to ETS 

5.  By regulation, a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

6.  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:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted.  Although the applicant had a short term of service prior to showing a pattern of misconduct, the Board found that based upon the punishment already served by the applicant, the demonstrated growth of the applicant through the multiple character statements, as well as the passage of time, the Board concluded that granting clemency in the form of upgrading his discharge characterization to Under Honorable Conditions (General) was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  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.  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 for the good of service in selected circumstances.

	d.  A member 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.  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.  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.

4.  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.

5.  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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.  

ABCMR Record of Proceedings (cont)	 AR20160015134


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