ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170008646 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of Support from Pastor X * Letter of Support from Reverend X * Letter of Support from X * Letter of Support from Deacon X * Letter of Support from Mr. X * Letter of Support from X * Letter of Support from X 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, while reviewing his personnel records which he received from National Personnel Records Center (NPRC), he found no record of the charges for the alleged offenses. He states the statement "in Lieu of Court Martial” was a plea bargain by the counsel appointed by the court martial board. He states that if the record of proceedings were available they would show that he, and several others, were present but did not participate in the controlled substance transaction. He believes the proper wording should have been "for the convenience of the Government" to preserve the primary charged. 3. The applicant provides: a. Letter of Support from Pastor X , dated 7 March 2017, which states that the applicant has been a member of the church since August 1997, and has made a. a positive change by followings God’s word. They state that the applicant is a living example of a Christian man of constructive and positive change. He has demonstrated an active path f faithfulness, patience and courage. He and his wife have implemented and lead the church’s recovery ministry and he is a Sunday school Instructor, member of the brotherhood, Evangelism Outreach Team, and a Bible based financial supporter. b. Letter of Support from Reverend X___, dated 11 March 2017, which states they are friends with the applicant and have known him the last 20 years. He states the applicant is honest, upright, and faithful to his wife and church. He participates in the prison ministry and has helped change lives. He leads the drug and alcohol rehabilitative meetings and is well respected around the church circles for the work he does. c. Letter of Support from X___, dated 8 March 2017, which states, the applicant exemplifies integrity in his work ethics as director of the church’s recovery ministry, and as a Sunday School Instructor. Through his similar experiences, he is able to gain the trust of the youth, and better support and guide them. She states, she is blessed to serve with the applicant, who is respectful and shows empathy to the elderly. d. Letter of Support from Deacon, dated 11 March 2017, which states they have known the applicant since he was school age. He was raised by a single parent, who ultimately did an excellent job. He states that the applicant is loved by the fellowship, but is most of all a loving, humble and caring servant of the lord. e. Letter of Support from Mr. X , which states the applicant is the “raw deal” when it comes to his character, devotion and commitment to conducting himself in a proper manner. He is always seeking self-improvement and to be an asset to whatever environment he is placed upon. He states the applicant exhibits good character, motivation, self-discipline, and humbleness, even when he doesn’t know someone is watching him. His peers view him in the same manner. f. Letter of Support from X , dated 1 March 2017, which states the applicant is a co-worker of twelve years, and in that time they have found him to be caring, compassionate, kind, dependable and well regarded amongst his peers. He provides an excellent example of commitment, strength of character, compassion, and dedication to others. Personally the applicant is a cherished friend, and an all-around lovely person. g. Letter of Support from X , dated 12 March 2017, which states they have known the applicant for over 15 years, and he is a leader within his own. He is a dedicated member of the church, involved in many ministries. He is assertive, outgoing, cooperative, respectful, faithful, dependable and has character above reproach. He is active in the youth ministry and started a recovery ministry. He has strong values and a personal drive to succeed. They are excited to be able to support the applicant. a. 4. A review of the applicant’s service records shows the following: a. He enlisted in to the Regular Army on 17 June 1982. b. Court marital charges were preferred on 15 August 1983. His DD Form 458 (Charge Sheet) indicates he was charged with: * one specification of wrongfully having in his possession 10 grams, more or less, of marijuana in the hashish form * one specification of wrongfully distributing 10 grams, more or less, of marijuana in hashish form c. He consulted with legal counsel on 18 September 1983 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * he understands the elements of the offense(s) charged and is guilty of the charge(s) against him * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge d. Consistent with the chain of command's recommendation, on 6 October 1983, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service with an under other than honorable conditions discharge. He would be reduced to private/E-1. e. On 19 October 1983, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 (For the Good of the Service - In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. He completed 1 year, 4 months, and 3 days of active service. He was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Badge with Rifle Bar (M16) * First Class Marksmanship Badge with Hand Grenade Bar * 5. The applicant applied to the Army Discharge Review Board on 31 December 1987, and the Board determined that he was properly and equitably discharged and his application for a character/ and or reason of discharge was denied. 6. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally is appropriate for a soldier who is discharged for the good of the Service. 7. By regulation (AR 635-200), a member who requests discharge as prescribed in chapter 10 will be given a reasonable time (not less than 72-hours) to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. Consulting counsel will advise the soldier accordingly. Commanders will insure that a soldier will not be coerced into submitting a request for discharge for the good of the Service. 8. 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 there 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 short term of service completed prior to the record showing he distributed illegal drugs, 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. 6/25/2019 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 policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. a. Chapter 10, of this regulation, states that a soldier who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier'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. c. 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. d. 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 service 3. 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 1. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS//