ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20170007779 APPLICANT REQUESTS: an upgrade of his bad-conduct discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States). 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 this is something that happened 29 years ago. He has paid his debt to society and takes full responsibility for what happened back then. He is ready to move on with his life. Since then, he married his best friend and soulmate in April of 1988. His wife retired out of the military in 1995. They have three great kids and six awesome grandkids. He is making this short and to the point and hopes that this information is sufficient. He has been very active in his church and has not been in any kind of trouble since. For the last 15 years, he has worked in the finance committee in his church and for the last six year as a trustee and chairman of the financial committee. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 15 February 1983. b. He served in Germany from 28 September 1983 to 5 October 1985. c. On 16 April 1987, he was convicted by a special court-martial of: * one specification of conspiracy to wrongfully distribute cocaine on or about 29 October 1986 * one specification of wrongful distribution of cocaine on or about 29 October 1986 d. The court sentenced him to a bad-conduct discharge, to be confined for a period of six months, to forfeit $405 pay per month for six months, and to be reduced to the grade of E-1. e. Special Court-Martial Order Number 54, dated 6 August 1987 approved the approved the sentence and except for that part of the sentence extending to a bad-conduct discharge, ordered the sentence executed by the convening authority. f. Special Court-Martial Order Number 6, dated 21 January 1988, finally affirmed the sentence to a bad-conduct discharge, confinement for three months, forfeiture of $405 pay per month for three months, and reduction to E-1. The provisions of Article 71(c) had been complied with, and the bad-conduct discharge would be duly executed. That portion of the sentence pertaining to confinement had been served. g. He was discharged on 16 May 1988. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years and 21 days of active service with list times from 16 April 1987 to 25 June 1987. His DD Form 214 also shows in: * item 4b (Pay Grade), E-1 * item 12h (Effective Date of Pay Grade), 16 April 1987 (the date the sentence was adjudged) * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Army Service Ribbon, Good Conduct Medal, Army Commendation Medal, Expert Badge (M-16) Rifle, Army Achievement Medal, and Noncommissioned Officer Professional Development Ribbon (1) * item 24 (Character of Service), Bad Conduct Discharge * item 25 (Separation Authority), Chapter 3, Section IV, Army Regulation 635-200 (Personnel Separations – Enlisted Separations) * item 28 (Narrative Reason for Separation), as a Result of Court-Martial 4. By regulation/directive: a. A member 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. b. 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 four years of service prior to the misconduct, the demonstrated growth by the applicant since the events leading to the discharge, him accepting responsibility for his actions and the passage of time since the discharge, the Board concluded that upgrading the characterization of service to Under Honorable Conditions (General). Additionally, the Board recommended that the narrative reason for separation also be changed to “Secretarial Authority” in order to provide greater opportunities for growth to the applicant in the future. 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 reissing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General) and changing the narrative reason for separation to “Secretarial Authority”. 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 Separations), 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 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 that 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 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) states a member 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. 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 UCMJ, 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 UCMJ 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 (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, 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. ABCMR Record of Proceedings (cont) AR20170007779 4 1