ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 October 2019

	DOCKET NUMBER:  AR20170010000


APPLICANT REQUESTS:  his first enlistment of service to be annotated as 
honorable on all his applicable documents. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application For The Review of Discharge From the Armed Forces 
of the United States)
*	DD Form 256A (Honorable Discharge Certificate)
*	DA Form 5689 (United States Army Oath of Reenlistment


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 would like to have his first term of enlistment annotated 
on his DD Form 214 (Certificate of Release or Discharge from Active Duty) as 
honorable.  He completed more than 90 days of active duty service honorably and 
received an honorable discharge.

3.  The applicant provides:

	a.  A copy of DD Form 256A (Honorable Discharge Certificate) for the period 
ending 11 December 2008.  

	b.  DA Form 5689, the United States Army Oath of Reenlistment, dated              
12 December 2008.  



4.  A review of the applicant’s service record shows:

	a.  He enlisted into the Regular Army on 10 May 2007.  

	b.  He served two tours in Iraq from 4 May 2009 to10 May 2010 and 29 July 2012 
to 30 December 2012.

	c.  The applicant was confined by authorities on 13 September 2013, as a result 
of a court-martial.

	d.  On 20 March 2014, he was convicted by special court-martial of:

*	one specifications of distribution of marijuana 
*	one specification of giving a false plea
*	one specification of using marijuana 
*	one specification of wrongfully possess marijuana, with intent to distribute 
the said controlled substance
*	one specification of substituting urine into a urinalysis 
*	one specification of intent to prevent its seizure, dispose of marijuana and 
marijuana seeds 
	
	e.  The court sentenced him to be dishonorably discharged and four months of 
hard labor.  The sentence is approved and, except for that part of the sentence 
extending to a Bad-Conduct Discharge, will be executed.  That part of the sentence 
extending to confinement has been served. On 1 October 2013, the automatic 
forfeiture of two-thirds of pay was waived for three months from the effective date of 
sentence of26 September 2013 and paid to the accused's spouse, Mrs. 
S.C.

	f.  He was discharged on 20 February 2015, under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3 with 
a bad discharge characterization of service.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he completed 7 years, 6 months, and 
3 days of active service

*	Iraq Campaign Medal with two campaign Stars
*	Army Commendation Medal
*	Meritorious Unit Commendation
*	Army Good Conduct Medal (2nd Award)
*	National Defense Service medal
*	Global War on Terrorism Service medal
*	Army Service Ribbon
*	Overseas Service Ribbon (2nd Award)
*	Combat Action Badge
*	National Defense Service Medal

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.  The Board should 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 supporting documents, the Board found relief 
was not warranted.  The applicant’s contentions were carefully considered.  His DD 
Form 214 already accurately accounts for his continuous period of honorable service 
in Block 18, Remarks.  The Board agreed there was no error or injustice in this case.

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.

	  
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 Soldiers), in 
effect at the time, sets forth the basic authority for the separation of enlisted 
personnel.  

	a.  Paragraph 3-7a (Honorable discharge) states 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 the 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 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 3-7c (Under Other Than Honorable Conditions) 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, homosexuality, security reasons, or for the good of the service.

	d.  Paragraph 3-11 (Bad Conduct Discharge) 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.

	e.  Paragraph 3-9 (Uncharacterized Separations) states a separation will be 
described as an entry level separation if processing is initiated while a member is in 
entry level status, except when characterization under other than honorable 
conditions is authorized.

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 form 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 the 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)	 AR20170010000

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