IN THE CASE OF: BOARD DATE: 7 November 2018 DOCKET NUMBER: AR20170006919 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 November 2018 DOCKET NUMBER: AR20170006919 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 18 on his DD Form 214 the entry "Continuous honorable active service from 11 June 1976 to 8 November 1982.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his bad conduct discharge. ____________x_____________ CHAIRPERSON 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. IN THE CASE OF: BOARD DATE: 7 November 2018 DOCKET NUMBER: AR20170006919 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his bad conduct discharge (BCD) to under honorable conditions (general) or honorable and that his first two enlistment be recharacterized to honorable. 2. The applicant states: a. He served a total of 10 years, initially enlisting on 23 December 1975. He reenlisted on 31 January 1980 and again on 9 November 1982. The incident [that resulted in his BCD] occurred during his third enlistment in 1985. He is requesting his first two enlistments be recharacterized to honorable because he would not have been able to reenlist if they were not. b. He was charged with four counts of larceny and sentenced to 30 months of confinement. He made a mistake that he has regretted since that time. He is not a bad person and just wants to be a productive member of society. c. His BCD has stopped him from doing a lot of things and has prevented him from obtaining many jobs. He loves working with senior citizens and volunteers at the Willard Outreach Center assisting the senior citizens. He also tutors young children. He is just requesting a second chance to do something good with his life. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * North Carolina Criminal Record Search (three pages) * four letters of support 2. Evidence from the applicant's service record and Department of the Army and Department of Defense records and systems: * Official Military Personnel File * DA Form 2-1 (Personnel Qualification Record - Part II) * DA Form 2-2 (Insert Sheet to DA Form 2-1 Record of Court-martial Conviction) REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty. b. A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 3. The Manual for Courts-Martial states a bad conduct discharge applies only to enlisted persons and may be adjudged by a general court-martial and by a special court-martial which has met the requirements of Rules for Courts-Martial. A bad conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad conduct rather than as a punishment for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary. 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. 5. Army Regulation 635-8 (Separation Processing and Documents) states block 18 (Remarks) is used for Headquarters Department of the Army mandatory requirements when a separate block is not available; as a continuation for entries in blocks 9, 11, 13, and 14; or for conditional entries including: a) "SOLDIER (HAS) OR (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE." This information assists the State in determining eligibility for unemployment compensation entitlement. The following guidance will help determine which entry to use: b) To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment contract and any extensions to those initial enlistment documents and compare the term of enlistment to the net service in block 12c of the DD Form 214. If Soldier has completed or exceeded the initial enlistment, enter "HAS." If block 12c of the DD Form 214 is less than the Soldier’s commitment, enter "HAS NOT." b) Routinely, a Regular Army Soldier should not be considered to have completed the first full term of service if separation occurs before the end of the initial contracted period of service. However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract. A prior service enlistee is considered to be on a second term of military service, even if that Soldier fails to complete the current term of service, the appropriate entry is "HAS." c). For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify inclusive dates for each period of reenlistment. d). For 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).” Then, enter the specific periods of reenlistment as prescribed above. 6. Department of Defense Directive 1332.28 provides that a discharge shall be considered inequitable when the policies and procedures currently in effect provide a substantial enhancement of an individual's rights. DISCUSSION: 1. While the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant initially enlisted on 11 June 1976 with reenlistments on 31 January 1980 and 9 November 1982. 3. On 4 June 1985, in accordance with his pleas, a general court-martial found the applicant guilty of four specifications of larceny of government checks (totaling $ 1,829.00), larceny of a traveler's check in the amount of $ 1,120.00, and falsifying an official document. His sentence was reduction to pay grade E-1, forfeiture of $400 per month for 30 months, confinement for 30 months, and to be discharged with a BCD. 4. General Court-Martial Order Number 69, dated 10 March 1986, states the findings and sentence had been affirmed and the provisions of Article 71(c) had been complied with, and directed the BCD be executed. 5. On 18 April 1986, the applicant was discharged with a BCD. His DD Form 214 shows: * 8 years, 11 months, and 17 days of active service this period * 5 months and 18 day of prior inactive service * reenlistments on 31 January 1980 and 9 November 1982 * retention on active duty for 161 days for the convenience of the government * lost time from 12 to 19 March 1985, 6 June 1985 through 3 November 1985, and 9 November 1985 through 18 April 1986 * award of the: * Good Conduct Medal (2nd award) * Overseas Service Ribbon (2nd award) * Army Service Ribbon * Parachutist Badge * Expert Qualification Badge with Rifle and Grenade Bars 6. The applicant provides a State of North Carolina Criminal Record Search that shows the following: * on 3 March 1999, felony possession of schedule II drugs – dismissed by District Attorney * on 4 April 1999, possession of marijuana and drug paraphernalia – found guilty * on 17 June 1999, felony possession of cocaine – found guilty * on 17 June 1999, felony violation for failure to maintain vehicle/dwelling, the manufacture of cocaine, and possession of drug paraphernalia – dismissed by District Attorney * on 3 January 2002, resisting a police officer – found guilty * on 12 February 2005, failure to carry a proper vehicle registration – dismissed by District Attorney * on 27 January 2007, driver's license violation – found guilty * on 27 January 2007, probation violation – found guilty 7. The letters of support provided by the applicant describe the applicant as an upbeat and very pleasant person. He has an affection and respect for people and a habit of visiting and assisting older people and the sick. He does a lot of work with seniors and as a volunteer in the Willard Church Outreach Center. His pastor describes him as a positive person with a good spirit about him. 8. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. 9. The applicant has made efforts to improve himself and his community as documented by the letters of support. His post­service conduct includes some significant legal violations as documented by the police report he provided. 10. At the time of the applicant's separation, only the dates of reenlistments were listed at item 18 on the DD Form 214. The current regulation also requires an entry on the DD Form 214 documenting continuous honorable active service for any Soldier who has reenlisted, has not previously been issued a DD Form 214, and is being discharged with service characterized as less than honorable. 11. The applicant provided information that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170006919 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170006919 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2