ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20170000732 APPLICANT REQUESTS: * his record reflect his second enlistment was honorable * his record be corrected to demonstrate his discharge was too harsh and severe * one complete enlistment based on previous honorable service * he personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (ABCMR) 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 was given a less than honorable service characterization without due process of the law. He had no legal representation, no pre-trial hearing, and no explanation as to why he was being arbitrarily separated. His discharge was too harsh and severe. 3. A review of applicant’s service record shows: a. He enlisted in the Regular Army on 22 October 1983 and immediately reenlisted on 11 May 1988. b. On 18 January 1990, he was tried before a General Court-Martial. He was convicted of distributing lysergic acid diethylamide, commonly referred to as “LSD”, on two occasions. His sentence included reduction to Private E-1, total forfeiture of all pay and allowances, thirty months confinement, and a bad conduct discharge (BCD). a. c. On 6 September 1990, the Army Court of Military Review affirmed both the findings and the sentence as correct in law and fact. d. On 29 November 1990, the then Deputy Assistant Secretary of the Army (Review Boards) granted clemency in the form of partial relief from forfeitures. e. On 26 December 1990, the applicant’s BCD was ordered and executed. f. On 22 April 1991, the applicant was released from confinement. g. He was discharged on 22 April 1991. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD, as a result of court- martial. Block 18 notes “continuous honorable active service: 831021-880510.” 4. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the seriousness of the misconduct which led to the discharge as well as the lack of character evidence presented by the applicant to show he has learned and grown from the events leading to the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 5/16/2019 X CHAIRPERSON Signed by: 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. Title 10, USC, section 1552(f), provides that with respect to courts-martial ABCMR action may extend only to the correction of actions taken by reviewing authorities or action on the sentence of a court-martial for purposes of clemency. 3. Army Regulation 15-185 (Army Board for Correction of Military Records), provides policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record. Paragraph 2-2 states that the ABCMR will decide cases on the evidence of record and may, in its discretion, hold a hearing. 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. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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. 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. //NOTHING FOLLOWS//