ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    24 April 2019

	DOCKET NUMBER:  AR20170000860


APPLICANT REQUESTS:  an upgrade of his dishonorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Five Letters of Support

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 had problems when he left Germany.  He has not been the same since.  His health is deteriorating.  He has hearing problems, hypertension, diabetes, and heart conditions.

3.  The applicant provides:

	a.  A letter of support from Ms. X__, dated 8 December 2016, which states the applicant has always tried to be a provider for his family.  He left home to serve his country after high school.  He was a happy, go-lucky person, but subdued upon his return.  He has developed several medical conditions that hinder his ability to work.  He needs help to assist with his everyday survival needs and medical attention.

	b.  A letter of support from Pastor X__, dated 9 December 2016, which states he has known the applicant for 25 years.  The applicant is a nice and dependable person.  He is a good neighbor to the church and his neighborhood.

	c.  A letter of support from Ms. X__, dated 11 December 2016, which states she taught the applicant, his wife and children.  The applicant has gone to great lengths to help members of the community with various problems.  His health, after serving his country, is beginning to decline and appears to be at a serious stage.
	d.  A letter of support from Mr. X__, dated 12 December 2016, which states he has watched the applicant’s health conditions fail and the applicant is now unable to work and take care of his family.

	e.  A letter of support from Ms. X__, dated 12 December 2016, which states she has known the applicant for 45 years.  He has witnessed the applicant’s health gradually fail.  The applicant is in great need of any and all assessments available to him.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army (RA) on 19 October 1978.

	b.  He served in Germany from 27 May 1980 to 22 May 1982.

	c.  He was discharged for immediate reenlistment on 5 May 1982.  His record is void of a DD Form 214 for the period 19 October 1978 to 5 May 1982.

	d.  He reenlisted in the RA on 6 May 1982.

	e.  He was convicted by a general court-martial on 3 May 1984 of one specification of wrongfully distributing marijuana.  The court sentenced him to forfeiture of all pay and allowances, reduction to the grade of private/E-1, confinement at hard labor for 1 year, and a dishonorable discharge.  On 15 June 1984, the convening authority approved the sentence and forwarded the record of trial for review by a Court of Military Review.

	f.  The U.S. Army Court of Military Review affirmed the findings of guilty on 17 January 1985.

	g.  General Court-Martial Order Number 608, dated 6 November 1985, affirmed and ordered the sentence duly executed.  That portion of the sentence pertaining to confinement had been served.

	h.  He was discharged from the Army on 3 December 1985.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 7 months, and 11 days with 3 years, 6 months, and 3 days of prior active service.  It also shows in:

* item 23 (Type of Separation), Discharge
* item 24 (Character of Service), Dishonorable
* item 25 (Separation Authority), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV
* item 28 (Narrative Reason for Separation), As a result of court-martial
* item 29 (Dates of Time Lost During This Period), 3 May 1984 to 13 February 1985
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.  Based upon the discharge resulting from a single drug offense, as well as the demonstrated growth of the applicant through the character letters provided by the applicant, 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:

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.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor.  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 (General discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under other than honorable conditions) sates 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, homosexuality, security reasons, or for the good of the service.

	d.  Paragraph 3-10 (Dishonorable Discharge Certificate) states 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.

3.  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.

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 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)	 AR20170000860


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