ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 April 2016 DOCKET NUMBER: AR20160016807 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate or Release or Discharge from Active Duty) to show his characterization of service as honorable in lieu of bad conduct (BCD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (x2) * DD Form 214 DD Form 214 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. He is a changed man, he has learned from his mistakes. 2. The applicant states, in effect, an upgrade of his characterization of service may make him eligible for veteran’s benefits. He served his country honorably for 6 years before getting into trouble. He has gone through rehabilitation and he is a different person now. 3. The applicant enlisted in the Regular Army on 18 August 1978. He served honorably from 18 August 1978 through 22 May 1980. His reenlistment contract shows on 23 May 1980, he reenlisted for 4 years, in pay grade E-4. At that time he had completed 1 years, 9 months, and 4 days of active service. 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on: * 27 May 1980, for leaving the arms room without authority, while serving as arms room guard (with intent to abandon), on 3 May 1980, his punishment consisted of a forfeiture of pay * 15 April 1981, for disobeying a lawful order by having female visitors in the billets area designated as off-limits, his punishment consisted of reduction to E-3 (suspended 60 days), a forfeiture of pay, and extra duty * 13 August 1982, for failure to go to his appointed place of duty at the time prescribed (twice) on 4 August 1982, his punishment consisted of reduction to E-3 and a forfeiture of pay (both suspended 90 days), and extra duty 5. He was assigned to Germany from 28 September 1982 to 21 April 1983. 6. General Court-Martial Order (GCMO) Number 81, issued by Headquarters, 3rd Armored Division, dated 26 May 1983, shows court-martial charges were preferred against the applicant for the distribution of 3.57 grams of hashish, on 19 January and distribution of 10.45 grams of hashish on 5 February 1983. He pled guilty to both charges and he was found guilty of both charges. 7. On 21 April 1983, the sentence was adjudged. The court sentenced him to confinement at hard labor for 75 days, reduction to the rank/grade of private/E-1, and a BCD. His sentence was approved and executed except for that portion pertaining to his BCD. 8. Orders Number 25-5, issued by the U.S. Army Confinement Facility, Mannheim, Germany, on 14 June 1983, shows the applicant was assigned to the U.S. Personnel Control Facility, Fort Dix, NJ, effective 15 June 1983, for further confinement. 9. On 22 June 1983, the applicant declined a separation medical examination. 10. GCMO 136, issued by the U.S. Army Training Center, Fort Dix, on 21 December 1983, shows that portion of the sentence extending to confinement had been served. Article 71© had been complied with and the BCD was ordered executed. 11. On 1 February 1984, he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), as a result of court-martial with a BCD. His DD Form 214 shows in: * (Net Active Service This Period): 05 03 14 * (Foreign Service): 00 06 24 * (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Marksman Marksmanship Qualification Badge Rifle (M-16), Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon with Numeral 1, and Army Service Ribbon * (Remarks) IMMEDIATE REENLISTMENT THIS PERIOD - 780818 - 800522 * (Separation Authority) AR 635-200, Chapter 3 * (Character of Service) BCD * (Narrative Reason for Separation) Court-Martial, Other * (Dates of Time Lost During This Period) 830422 – 830621 12. 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.  13 His service record shows he accepted three NJP’s for misconduct and he was convicted by a GCMO of distributing hashish on two different occasions, as such, he was discharged due to a court adjudging a BCD. 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 guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration and reviewing discharge upgrade requests, the Board determined that relief was warranted. One outcome discussed was to deny the applicant’s request based upon the multiple occasions of UCMJ violations. However, after looking at the complete 5-year record of the applicant, the type of misconduct, and the passage of time, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 upgrading the characterization of service to Under Honorable Conditions (General). 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 characterization of his discharge to Honorable. 3. Prior to closing the case, the Board noted the administrative note below by the analyst of record and recommended that change also be made to more accurately depict the military service of the applicant. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s record shows his DD Form 214 for the period ending 1 February 1984 is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend item 18 (Remarks) of his DD Form 214 by adding: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780818-800522.” 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. A Soldier will be given a BCD 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. b. 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. 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. 3. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. 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. 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/NRs) 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. ABCMR Record of Proceedings (cont) AR20160016807 0 4 1