ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:     26 April 2019

	DOCKET NUMBER:  AR20160019181


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20070005908 on 14 August 2007.  Specifically, he requests his bad conduct discharge (BCD) be upgraded.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for correction of Military Record Under The Provisions of Title 10, U.S. Code, Section 1552)
* Record of Proceedings (ROP), ABCMR Docket Number AR20070005908 

FACTS:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070005908 on 14 August 2007.

2.  As a new argument, the applicant states it's been 33 years since he was discharged and he feels he is being punished for a crime he committed when he was a kid.  He wants to be treated like the veteran he is.  He works at the Department of Veterans Affairs (VA) office but cannot receive benefits due to his BCD.  He owes all of his success to the military.  He has been working for the VA for 23 years, taking care of Veterans, he just wants to be treated as such.               

3.  The applicant enlisted in the Regular Army on 19 July 1978 and reenlisted on 
30 January 1981.

4.  Before a special court-martial on 11 February 1982 at Fort Riley, KS, the applicant was convicted of violating Article 134 of the Uniform Code of Military Justice (UCMJ).  Specifically, he was convicted of wrongfully possessing, wrongfully selling, and wrongfully introducing a habit forming narcotic drug, to wit: cocaine, into a military installation, each specification on or about 31 July 1981.

5.  The applicant's sentenced included his reduction to the rank/grade of private/E-1; forfeiture of $347 pay per month for four months; confinement at hard labor for four months; and separation from service with a BCD.  The sentence was approved and the record of trial was forwarded to the U.S. Army Court of Military Review pending appellate review.

6.  The U.S. Army Court of Military Review affirmed the findings and sentence on 
20 August 1982.  The U.S. Court of Military Appeals denied the applicant's petition for review. 

7.  Special Court-Martial Order Number 71, issued by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, KS on 14 December 1982, shows that after completion of all required post-trial and appellate reviews, the convening authority noted the applicant's sentence had been affirmed and ordered his BCD duly executed.

8.  Order Number 3-4, issued by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, KS on 5 January 1983, ordered the applicant's discharge effective the same day with a BCD.

9.  The applicant was discharged on 5 January 1983.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations) Chapter 11, as a result of court-martial.  His DD Form 214 shows his character of service was bad conduct.  It also contains the entry "Immediate Reenlistment This Period 780719 - 810129."

10.  Army Regulation 635-200 is the governing Army regulation for administrative separations.

11.  The Board should consider the applicant's statement in accordance with the published equity, injustice, and 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.  Based upon the type of misconduct which resulted in the discharge, the passage of time, as well as the demonstrated growth of the applicant based upon his employment history with the Veteran’s Administration, the Board concluded that upgrading the characterization of service 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:

1.  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). 

2.  Prior to closing the case, the Board noted the administrative notes below by the analyst of record and recommended those changes also be completed 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 
5 January 1983, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries to 
item 18 (Remarks):

* SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
* CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780719 UNTIL 810129


REFERENCES:

1.  Title 10, U.S. Code, 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 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, in effect at the time, set forth the basic authority 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.  Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed.  The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable.

3.  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.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds.  
	
      a.  This 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, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  
	
      b.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

ABCMR Record of Proceedings (cont)	 AR20160019181


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