ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20170001339 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) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of discharge of 2 December 1968 and 20 December 1973 * DD Form 214 (Report of Separation from Active Duty) with an effective date of discharge of 19 September 1977 and 20 December 1978 * DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of discharge of 24 October 1984 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 believes the punishment from his court-martial was too harsh a punishment and that they did not take into account his side of the story. He feels that he was implicated in a crime that he did not participate in. He wants to note that the jury only found him guilty of minor offenses and due to his seniority made an example of him. Since his discharge he has picked himself up and continued to improve himself over his life. It has been over 30 years since he was punished and he believes that due to his service to the country he deserves an upgrade. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army (RA) on 30 November 1965. b. He served in Germany from 23 May 1966 to 2 September 1968, from 29 May 1972 to 26 May 1976, and from 1 April 1979 to 27 March 1982. c. He was honorably discharged on 2 December 1968, 20 December 1973, 19 September 1978, and 20 December 1978, for immediate reenlistment. He last reenlisted on 21 December 1978 and on 8 December 1982. d. He was convicted by a general court-martial on 6 October 1983 of one specification of wrongful possession of marijuana with the intent to distribute. The court sentenced him to reduction to the grade of private/E-1 and a dishonorable discharge. On 18 January 1984, the convening authority approved the sentence and forwarded the record of trial for review by a U.S. Army Court of Military Review. e. He signed the Notice to Accused notifying him of his right to appeal the decision to the U.S. Army Court of Military Review on 27 July 1984. f. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 10 October 1984. g. General Court-Martial Order Number 35, dated 10 October 1984, affirmed and ordered the sentence duly executed. h. He was discharged from the Army on 24 October 1984 with a dishonorable discharge. His DD Form 214 shows he completed 5 years, 10 months, and 24 days of active service with 10 years, 7 months, and 25 days of prior active service. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * National Defense Service Ribbon * Army Service Ribbon * Overseas Service Ribbon * Good Conduct Medal (5th Award) 4. 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. 5. 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. One potential outcome discussed was to upgrade the characterization of service to Under Honorable Conditions (General) based upon the length of honorable service completed prior to the single incident of misconduct. However, the Board concluded that upgrading the characterization of service to Under Other Than Honorable Conditions was appropriate based upon the offense including the intent to distribute to others. 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 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 Other Than Honorable Conditions. 2. Prior to closing the case, the Board noted the administrative notes of the analyst of record below and recommended making that change as well 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 records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service 19781221 – 19821208.” 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 (AR) 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) states 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. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable”, enter “Continuous Honorable Active Service from” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 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) AR20170001339 3 1