ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20170009846 APPLICANT REQUESTS: In effect, a separate DD Form 214 (Certificate of Release or Discharge from Active Duty) for his honorable service period 4 April 1980 through 24 April 1984. 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) * VA Form 21-4138 (Statement in Support of Claim), 8 May 2017 * Honorable Discharge Certificate, 24 April 1984 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 (ABCMR) 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 he served and completed a four year enlistment from 4 April 1980 through 24 April 1984. During that period, he received a good conduct medal and a certificate of a honorable discharge. Therefore, he request a separate DD Form 214 to reflect this honorable period of service. a. He discusses the factors that led to him joining the Army. He completed basic training at Fort Knox, KY and advanced individual training at Fort Benjamin Harrison, IN. His first duty station was at Fort Gordon, GA. Afterwards, he received an overseas assignment. b. A week after turning 19 years of age, he arrived in Seoul, South Korea. He linked up with his best friend whom was already stationed in Korea. His friend took him to a placed called the “E” (E-Tae-Won). The "E" as it was called, was known for its many merchants, panhandlers, hotels, restaurants, dance clubs, jazz clubs, and most of all - its red light districts. The red light districts were an obvious point for prostitution and meth distribution. c. When the Korean-cab (a cab driven by a Korean) pulled up into the entrance way of the "E" and before his friend could hand the cabby his fee, all the applicant heard was "G.I. long time ten dollar, short time 5 dollar. F*ck you longtime." Then he heard girlish laughter coming from many different areas. There were Korean females, all ages and sizes he thought he had entered into another universe. d. On his first day in country, he was having a blast. While he and his friend sat in a secluded corner of a bar, his friend pulled out a small clear package which contained what looked like cocaine inside. His friend said, "Are you ready to party into the next day?" Little did he know, this party would last two years. e. This so called "friend" introduce him to the world of crank - Crystal Methamphetamine. This was the first time he had heard about ICE or Crank, however, it has been around a long time. A line or two up each nostril would keep you woke and hyper-active (high) for at least 12 hours. His high did not come down for the duration of his tour in Korea. He got addicted to meth within weeks of arriving in the country. He was able to function as a Soldier by taking two days off each week to eat and sleep. Somehow this break allowed the body to reboot for another week of partying and meth. Despite his drug usage, he performed his military duties in an exemplary manner-all things considered. 3. The applicant provides: * VA Form 21-4138, 8 May 2017 addressed above * Honorable Discharge Certificate, 24 April 1984 showing he had honest and faithful service 4. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 8 April 1980. He later reenlisted on 25 April 1984. b. He accepted non-judicial punishment on 28 August 1986 for failure to go at the time prescribed to his appointed place of duty on 30 May 1986 and 7 August 1986. Also having knowledge of his duties, were derelict in the performance of those duties in that he willfully failed to be in proper duty uniform, as it was his duty to do. c. His record is void of a DD Form 458 (Charge Sheet). On 10 September 1987, he was convicted by a general court-martial of the charge (wrongful use of controlled substances), and its seven specifications: * Wrongful use of cocaine, on or about (OOA) 6 January 1987 * Wrongful distribution of 6.55 grams, more or less, of cocaine, OOA 6 January 1987 * Wrongful distribution of 20 dosage units of LSD (Lysergic acid diethylamide) OOA 26 February 1987 * Wrongful distribution of 3.942 grams, more or less, of cocaine, OOA 26 January 1987 * Wrongful distribution of 5 dosage unit, more or less, of LSD,OOA 26 November 1987 * Wrongful distribution of 1.00 grams, more or less, or cocaine, OOA 21 December 1986 * Wrongful distribution of 15 dosage units, more or less, of LSD, OOA 29 September 1986 d. The court sentenced him to reduction to private/E-1, forfeiture of all pay and allowances, confinement for five years, and to be discharged with a dishonorable discharge. e. On 1 December 1987, was approved and, except for the dishonorable discharge, the sentence was approved by the convening authority. f. On 1 March 1988, U.S. Army Court of Military Review having found the finding of guilty and sentence as approved by proper authority correct in law and fact and having determined, on the basis of the entire record, that they should be approved, such finding of guilty and sentence are hereby affirmed. g. On 14 March 1989, General Court-Martial Order Number 90, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge will be executed. h. On 14 April 1989, the applicant was dishonorably discharged as a result of court- martial in the rank of private/E-1. He completed 7 years, 5 months, and 2 days of active service. He was retained in service for 721 days for the convenience of the government. Item 18 (Remarks) reflects immediate reenlistments this period: 800408-840424 5. The ABCMR considered his application under procedures established by the Secretary of the Army and denied his request on 24 July 1991. He was notified by letter on 5 June 1992. 6. By regulation, AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a member 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. 7. 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 ABCMR 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. 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 reviewing the application and all supporting documents, the Board found the relief was warranted. Based upon the applicant completing his first term of service prior to any misconduct found within his record, the Board concluded that the requested relief was warranted. 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 Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 by adding to Item 18, “Continuous honorable active service from 4 April 1980 until 24 April 1984.” 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 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) 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to 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). 3. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 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 3-10 states that a member 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. 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170009846 6 1