ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170007180 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade bad conduct discharge to general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter authored by the applicant’s mother * Veteran identification card * DD Form 214 (Certificate of Release or Discharge * DD Form 214 (Service copy) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150010928 on 26 April 2016. 2. The applicant’s parent states: a. That her son made a mistake while serving in the U.S. Army in Germany. He paid for it and served 6 months in the Fort Riley, KS Disciplinary Barracks. After becoming a citizen after the applicant’s discharge he never broke any laws or got into trouble. b. The applicant was very proud of his military service. The applicant applied for and received a veteran identification card in El Dorado County, CA. He was beginning the process to request his military discharge to be upgraded, but he passed away from lung cancer on 28 January 2016. c. The applicant’s mother; step-father; who is a Vietnam veteran, and older brother are pleading with the Board to upgrade the applicant’s discharge so they can apply for a Veteran Administration headstone marker to go on the back of his headstone. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 9 October 1985. b. He served in Germany from 18 February 1986 to 7 August 1988. c. On 23 November 1987 the applicant acknowledged receipt of a DA Form 4126-R (Bar to Reenlistment Certificate) that recommended that he be barred from reenlistment in the U.S. Army and it was approved on 24 November 1987 for receiving the following nonjudicial punishment: * breech of peace on 13 May 1986 * failure to repair and disrespect to a noncommissioned officer on 26 March 1987, his punishment included reduction to private/E-2 (suspended) * assault on 11 August 1987, his punishment included reduction to private/E-2 (suspended for 2 months) d. On 28 May 1988, the applicant’s immediate commander did not recommend removal of the bar to reenlistment. e. On 8 August 1988, he was convicted by a general court-martial. The court sentenced him to confinement for 9 months, reduction to private/E-1, and bad conduct discharge, for the following offenses: * one specification of possession of drug paraphernalia * one specification of possession with intent to distribute marijuana/hash * one specification of distribution of marijuana/hash * one specification of wrongful use of marijuana/hash f. General Court-Martial Order Number 102, dated 27 October 1988, shows the convening authority approved the adjudged sentence and except for the bad conduct discharge ordered it executed. g. On 1 March 1989, a petition for special clemency was approved for the remission of the unexecuted portion of the applicant’s sentence to confinement effective 10 March 1989 in General Court-Martial Order Number 274. h. On 18 May 1989 appellate authority considered and found meritless the issue raised by the appellant. Only so much of the finding of guilty of specification three in charge II as finds that the appellant did on several occasions wrongfully distribute various amounts of marijuana in the hashish form. The remaining findings of guilty and the sentence was promulgated. i. The court affirmed the sentence to a bad conduct discharge, confinement for 9 months, forfeiture of all pay and allowanced, and reduction to private/E-1. The unexecuted portion of the sentence to confinement was remitted, Article 71 (c) having been complied with the bad conduct discharge be executed. j. He was discharged from active duty on 7 September 1989 with a bad conduct characterization of service. His DD form 214 shows he completed 3 years, 1 month, and 25 days of active service with 8 August 1988 to 8 October 1988 and 9 October 1988 to 9 March 1989 were lost days. It also shows he was awarded or authorized: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Badge with Grenade Bar 4. The applicant applied to the Army Board for Corrections of Military Records and on 26 April 2016, his application for an upgrade of his discharge was denied. 5. By regulation 635-200 (Personnel Separations – Enlisted Personnel), states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letters of support were 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 incidents of a criminal nature and some involving violence towards others, the Board agreed that the FSM’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 to amend the decision of the ABCMR set forth in Docket Number AR20150010928 on 26 April 2016. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel: a. Paragraph 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has not 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 that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c (Under Other Than Honorable Conditions) states that 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, for security reasons, or for the good of the service. d. Paragraph 3-10, section IV (Dishonorable Discharge) states a Soldier 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. d. Chapter 3 section IV, paragraph 3-11 (Bad Conduct Discharge), of that regulation states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. Any sentence to confinement has been deferred or served. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any 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 the Military Department. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Corrections 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007180 4 1