ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20170009450 APPLICANT REQUESTS: his DD Form 214 to reflect honorable discharge for his first term of service 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) * DD Form 149 (Application for Correction of Military Record) 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, in effect: a. It is his understanding that once a service member renews their service contract, they automatically receive an honorable discharge. He reenlisted in March 2005; however, his DD Form 214 only reflects his entry date and the date he was dishonorably discharged. b. Although he was in confinement at the time of his discharge, the U.S. Disciplinary Barracks never issued him the customary official notification that he was being discharged. He did not know of his discharge until two years later in 2012. 3. A review of the applicant’s service record shows: a. The applicant enlisted in the Regular Army on 12 July 2000. b. On 9 February 2005, the applicant accepted nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty on three occasions, being derelict in the performance of his duties, and for making a false official statement. a. c. On 27 January 2006, he was convicted by a general court-martial of one specification of conspiracy, 13 specifications of wrongful use, possession, etc. of a controlled substance, and 8 specifications of carrying on of the criminal conspiracy to import, introduce, and/or distribute cocaine, and wrongfully transport a firearm in interstate or foreign commerce with the intent to commit an offense punishable by imprisonment. The court sentenced him to be reduced to the grade of private/E-1, confined for 23 years, forfeiture of all pay and allowances, and dishonorably discharged from the service. d. On 1 June 2007, the convening authority approved the sentence and, except for the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to the Judge Advocate General of the Army for appellate review. e. On 14 July 2009, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. The Court of Appeals for the Armed Forces denied the applicant's petition for review on 29 April 2010. f. After completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. On 1 March 2017, Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK executed the final order. g. The applicant was discharged on 31 May 2010. His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). (1) He completed 5 years, 6 months, and 15 days of active military service with lost time from 27 January 2006 to 31 May 2010. (2) His service was characterized as dishonorable and he was assigned the separation code JJD. (3) (block 18, Remarks) reads, "Immediate Reenlistments This Period -- 20000712 - 20050324, 20050325 - 20100531//" 4. Army Regulation (AR) 635-5 (Personnel Separations - Separation Documents), paragraph 2-4d (18)4(c), provides enlisted Soldiers with more than one enlisted period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates). However, 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 which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistments as prescribed above. 1. 5. By regulation, a member will be given a dishonorable 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. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 7. 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, the Board determined that relief was warranted. Based upon the applicant completed a period of honorable service prior to his separation and that honorable service period currently not being annotated on his DD Form 214, the Board recommended granting the applicant’s request for relief. 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 adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 20000712 - 20050324.” 5/30/2019 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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel, as a result of court- martial. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c states 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, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member will be given a dishonorable 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. AR 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 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 1. 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 on the basis of 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.