ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170002860 APPLICANT REQUESTS: an upgrade of his dishonorable discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States) * Certificate of Military Service * Letter in Support dated 24 January 2017, signed by X * Department of the Army Waiver Application 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 that he made a bad decision during the time period of 1983 to 1984 while serving in Germany. He states that he sold illegal drugs and served 4 years at Fort Leavenworth for his crime and had now changed his life and learned how to make better decisions since he has been out of the military. He owns his own trucking company in which he is an owner and operator with Food Lion Distribution according to the applicant. He states that he has been through the background checks and steps necessary for him to regain access to Fort Bragg, NC. 3. The applicant provides: a. A copy of his discharge certificate from the military that shows he enlisted in the Army on 10 June 1980 and he was dishonorably discharged on 20 December 1985. His grade and rank at the time of discharge was private / E-1. b. A letter of support dated 24 January 2017, from IJ that states he or she is providing a character reference for John Jackson he or she has worked with the applicant at Food Lion Distribution for the last 5 years. X states that they have become a. very familiar with his personality and great work ethic and have great respect for him. X states that they have a great respect for the applicant and he has been a great asset to the company and to the community. X states that the applicant is willing to go above and beyond for the company and his co-workers as an owner and operator (Truck Driver) for the company. d. A waiver request to the Department of the Army for access at the All American gate Visitor’s Center. The waiver request is date 16 June 2015. 4. A review of the applicant’s service records show the following: a. He enlisted into the Regular Army on 10 June 1980. b. He served in Germany from 20 February 1983 to 6 May 1984. c. DA Form 2-1 (Insert Sheet to DA Form 2-1 – Record of Court Martial Conviction), shows the applicant was charged with three specifications and listed as follows: * Specification 1 – On or about 22 December 1983 wrongfully distributed marijuana in the hashish form * Specifications 2 – On or about 29 December 1983, the applicant was charged with distributing marijuana in the hashish form * Specification 3 - On or about 5 January 1984 t, the applicant was charged with wrongfully distributing marijuana in the hashish form * 5 January the applicant wrongfully possess marijuana in the hashish for with intent to distribute * his sentence for his charges included confinement of 4 years with hard labor, reduction to private/E-l, forfeiture of $250 per month for 60 months and a dishonorable discharge d. The National Personnel Records Center verified that the applicant’s service records and his DD-Form 214 was missing. They enclosed a NA Form 13038, Certification of Military Service in lieu of his separation document and a DD Form 293. e. The applicant was discharged on 20 December 1985 with a dishonorable discharge. His DA Form 2-1 shows his confinement date of 17 May 1984. It shows he had lost time of 34 days for the period 7 May 1984 to 9 June 1984 and 559 days of lost time from 10 June 1984 to 20 December 1985. It also shows that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). 5. By law, when it comes 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 1. 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. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letter of support was carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon the multiple drug offenses which included distributing to others, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 6/26/2019 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. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted members. 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. 3. Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without leave or Desertion), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. An individual will be considered for discharge when he has been initially convicted by civil authorities, or action taken against him which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year. An individual discharged for conviction by civil court normally will be furnished an Undesirable Discharge Certificate. 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, 1. 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//