ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 February 2019 DOCKET NUMBER: AR20170013024 APPLICANT REQUESTS THROUGH COUNSEL: an upgrade from a bad conduct discharge (BCD) to a general discharge and a personal appearance hearing. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * statement from counsel for applicant's in support of relief * Record of Trial, dated 21 February 1989 * a summary of offenses, pleas, and findings, dated 21 February 1989 * a memorandum issued by U.S. Army Correctional Activity for authorization of excess leave * U.S. Army Court of Military Review * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Fifteen affidavits of support for applicant * U.S. Department of Justice, Federal Bureau of Investigation (FBI), Criminal Justice Information Services Division, dated 9 August 2016 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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. Counsel provides, with the applicant's request, a procedural history, which is described below: a. This is a case involving a service member who was discharged from the United States Army and received a discharge as a result of a court- martial, which was unfair. On 29 September 1989, pursuant to Army Regulation 635-200, chapter 3, section IV, the applicant was discharged with a BCD. The applicant seeks to remedy a disproportionate and unfair discharge through the ABCMR. b. The applicant wishes this petition to be reviewed and in the interest of equity, fairness, and justice, for his discharge to be upgraded to a general (under honorable conditions). If relief cannot be granted based upon this application alone, then the applicant requests a personal appearance before the board. c. Inequity exists when the discharge was inconsistent with disciplinary standards at the time, or when the quality of the member's service and capability to perform military service make the discharge unfair. Factors for consideration of the quality of service include the service member's ranks, awards and decorations, letters of commendation or reprimand, combat service, acts of merit; length of service, prior military service, courts martial and other forms of discipline, and records of unauthorized absence. The Board is required to "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made," and the Administrative Procedure Act (APA) 14, "sets forth the full extent of judicial authority to review executive agency action for procedural correctness," F.C.C. v Fox Television Stations, Incorporated. d. In addition, the APA requires the Court to hold "unlawful and set a side" any Board action, findings, or conclusions that are, " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law", Kreis v .Secretary of Air Force, see also 5 U.S.C., section 706 (2(A) 17. The Secretary of the Army has adopted the procedures directed by 32 C.F.R.section 581, 3a, which govern the Boards activities. The chair of the Board is directed to ensure that the applicant receives a full and fair opportunity to be heard, and to certify the record of the proceedings. The Board members are instructed to review all applications that are properly before them to determine the existence of error or injustice, and if persuaded that material error or injustice exists, to direct changes in military records to correct the error. e. When the statute or governing regulation refers to "errors," they are referring to factual or legal errors that can disadvantage a service member. The Board's objective is to examine the propriety and equity of the applicant's discharge and to effect changes if circumstances warrant. The standard of review and the underlying factors, which aid in determining whether the standards are met, shall be historically consistent with criteria for determining honorable service. Equity considerations include an evaluation of matters such as age, educational level, and aptitude scores; whether the individual met normal military standards of acceptable behavior. Impropriety may be found when a prejudicial error of fact, law, procedure, or discretion occurred. Impropriety may also be found if an expressly retroactive and favorable change in law or policy has been made. f. The applicant is 47 years old, and he was raised in . He lived with his mother and his maternal grandparents. His mother divorced his father when he was two years old due to his father's alcoholism. The applicant's mother was one of fourteen children; five of her nine brothers and a sister served honorably in the United States military. The applicant's family instilled the values of hard work in him at an early age. During grade school, he was a cub scout and a boy scout, and was also an altar boy at his Catholic church. He enjoyed school where he had many good friends and was in the annual school drama plays. He played t-ball, little league Babe Ruth baseball, and was on all-star team of several towns. He also learned fishing, raccoon hunting, and trapping from his uncle. g. He attended high school in Newport, VT and focused on technical courses in construction and building. He was also on the high school baseball and basketball teams. In June 1987, he graduated high school and enlisted in the United States Army. He officially enlisted on January 21, 1988, attended basic training at Fort Leonard Wood, MO, completed eight weeks of basic training and eight weeks of advanced individual training (AIT). He joined the Army because he knew it would serve as a great opportunity for him and his family. He also had aspirations for college and knew the Army would be a great resource to help pay the expenses for a college education. h. After AIT, he was transferred to Karlsruhe, Germany. At a young age of 19, he was homesick and very impressionable. Unfortunately, he began associating with a group of young men and he began drinking alcohol heavily. He was routinely drinking 12 beers a day to intoxicate himself. In December 1988, near Rheinberg, Germany, he and three of his friends rented a car and traveled to Amsterdam, Netherlands. The group visited a few nightclubs to have drinks and proceeded to another club. The applicant drank several alcoholic beverages and made a poor decision to purchase 5.5 grams of marijuana for roughly 50 guilder (27.93 US dollar) and 17 grams of hashish for 100 guilder (55. 87 US dollar). He and his friends travelled back to base and they were stopped at the border in Germany by border patrol. The rental car was searched; marijuana and hashish were found in the applicant's possession. He was detained by German police and was picked up by his sergeant and brought back to base in Karlsruhe, Germany. i. The applicant was referred for trial to a GCM on 21 February 1989. The applicant realized the gravity of his mistake and the downward spiral his life was taking. He went to his command and informed them of his alcohol problem and he voluntarily began taking Antabuse, a medication to assist alcohol dependency. He pleaded guilty to two specifications of violation of the Uniform Code of Military Justice article 112a. The military judge awarded a BCD, confinement for 13 months, total forfeiture of all pay and allowances, and reduction to E-1. He was placed on appellate leave on 21 February 1989, and on 29 September 1989, he was discharged from the Army. j. Post-service: Upon release from confinement, he returned home to live with his mother for a short time. The applicant then lived with his father in Massachusetts. After working for his father for a little over two years, he met his future wife, Robin. He moved to Daytona, FL to get his Harley Davidson Mechanic Certification. Upon completing the course for the certification, he received a job at Cycle Crafts in Revere, MA. He worked at Cycle Crafts for nine months, and during this time, his wife became pregnant. He gained additional employment in construction and worked seven days a week. After many years of learning the trade of construction, he started his own construction company, which he has continued for the past 18 years. He has also been a T-ball and little league coach from 1990 to 1995. He has been a member of the Ayer Sportsmen Club for 22 years, and volunteers for several events throughout the year including a Veterans Fishing Derby once a year, the Association of Handicapped Citizens (ARC), and the Children's Fishing Derby once a year. He also assists with two Boys Scout Troops (Troop 1 and 2) from Ayer, MA. k. He also hosts campsites on his property for Troop 2 of Ayer and hosts a winter freeze out event and several events during the summer. The applicant has no further arrests or misconduct, and he has been a model citizen. l. The applicant's BCD is unjust when balanced against the circumstances of the offense and his overall behavior, performance of duties, and post service conduct. A BCD is a punitive discharge and can only be awarded at an approved court-martial sentence, pursuant to a conviction at a court-martial, for a violation of the UCMJ, and is reserved for the most serious offenses. This was an isolated incident where he made a horrible, immature decision. He became dependent on alcohol and in doing so made very poor decisions. The applicant was a young 19 year old and succumbed to peer pressure from his fellow Army friends. He had no intent to gain any monetary value from giving the marijuana and hashish to his friends. m. As stated in his Record of Trial, the applicant voluntarily entered into Alcoholics Anonymous (AA), immediately following the incident and voluntarily enrolled in the Community Counseling Center (CCC) and began taking Antabuse. Antabuse is a disulfiram and blocks an enzyme that is involved in metabolizing alcohol intake. Disulfiram produces very unpleasant side effects when combined with alcohol in the body and helps keep an individual from drinking alcohol. n. Characterization of discharge will be based upon the quality of the service member's service, including the reason for separation. The quality of service will be determined in accordance with standards of acceptable personal conduct and performance of duty for military personnel, and by directives and regulations issued by the Department of Defense, the Department of the Army, and the time-honored customs and traditions of military service. The quality of service of enlisted service members on active duty is adversely affected by conduct that is of a nature to bring discredit on the military services or is prejudicial to good order and discipline. The reasons for separation will be considered on the issue of characterization, in a general, characterization, it will be based on a pattern of behavior rather than an isolated incident. There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization. Due consideration will be given to the enlisted service member's age, length of service, grade, aptitude, physical and mental condition, and the standards of accept able conduct and performance of duty. (1) The honorable characterization is appropriate when the quality of the enlisted service member's service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) The general (under honorable conditions) characterization is warranted when a service member's service has been honest and faithful; when the positive aspects of the enlisted service member's conduct or performance of duty outweigh negative aspects of the service member's conduct or performance of duty as documented in their service record. (3) The BCD is based on one or more acts or omissions that constitute a significant departure from the conduct expected of enlisted Service members. Examples of factors that may be considered include: the use of force or violence to produce serious bodily injury or death; abuse of a special position of trust; disregard by a superior of customary superior- subordinate relationships; acts or omissions that endanger the security of the United States or the health and welfare of other service members; and deliberate acts or omissions that seriously endanger the health and safety of others persons o. Characterization will be determined solely by the enlisted service member's military record during the current enlistment or period of service to which the separation pertains, and any extensions thereof prescribed by law or regulation or effected with the consent of the service member. p. Congress has long recognized the "strong moral obligation of the federal government to provide treatment for service-connected disabilities." The conditions surrounding a service member's discharge from the military can have important implications for his or her ability to claim an entitlement to a wide range of benefits through the Department of Veterans Affairs (VA). The discharge they received can affect any benefits the service member may have been otherwise entitled to, including: service-connected disability compensation, health care, education assistance, non- service connected pension, burial benefits, housing benefits, and vocational rehabilitation. q. A service member who receives a BCD will be limited to receiving VA healthcare services for a disability that is service connected. This statutory bar will prohibit the service member from receiving any VA healthcare services based on the relevant period of service, Public Law 95-126 and see 38 U. S. C. 5303(a). r. An honorable discharge or general discharge (under honorable conditions) issued through the ABCMR or Discharge Review Boards sets aside any prior statutory or regulatory bars to benefits, 38 C. F. R. section 3 12(e). In this case, the applicant admits his wrongdoing and fully accepts his responsibility for his immature behavior. He was a good soldier who did his job. Unfortunately, he made the terrible mistake of falling in with the wrong crowd, becoming heavily involved with alcohol and used drugs. s. The applicant respectfully requests that you consider his young age at the time of the incident. He was just 19 years old and succumbed to peer pressure from his fellow Army friends. He had no prior criminal history based upon the evidence presented, and based on equity, fairness, and justice, the applicant respectfully requests that his discharge be upgraded to general (under honorable conditions.) t. A BCD is unfair when balanced against the circumstances of the offense. He was awarded 7 months of confinement and a reduction in rate to E-1; he was punished for this offense. The applicant is extremely remorseful for his actions, has carried this punishment around for 28 year, and there in not a day that goes by that he does not think about the stupid and immature act he made when he was 19 years old. He admitted his part in the incident, admitted his guilt, and accepted the wrongfulness of his conduct. He had no intention to gain any monetary value from the marijuana and hashish. Outside of this isolated period of circumstances, the applicant has been a model citizen. He has consistently paid his taxes on time and he is an active member of his community. Please consider the statements and affidavits he has provided as proof of his changed behavior. u. In conclusion, the applicant's BCD is unjust when balanced against the circumstances of the offense, his overall behavior, and performance of his duties, and his post service conduct. When considering this case, the applicant respectfully requests that you consider the totality of the circumstances, his performance, and post service conduct. His service has met the standards of performance of duty to be upgraded to a general discharge and based upon equity and fairness he respectfully requests his discharge be upgraded to a general (under honorable conditions). 3. On 21 January 1988, the applicant enlisted in the Regular Army, at the age of 19. 4. His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to B Company, 249th Engineer Combat Battalion (Heavy), Germany from 6 June 1988 to 20 February 1989. 5. A charge sheet shows the applicant was charged at a general court-martial (GCM) of two specifications of drug abuse for wrongfully possessing 5.5 grams of marijuana, a controlled substance, and for wrongfully possessing about 17 grams of hashish, a controlled substance. He pled guilty to both specifications. He was found guilty of both specifications, and was sentenced to be reduced to E-1, forfeitures of all pay and allowances, to be confined for 13 months, and to receive a BCD. 6. His DA Form 2-1 shows he was sent to the U.S. Army Confinement Facility, Mannheim, Germany from 21 February 1989 to 14 March 1989. 7. GCM Order Number 16, dated 9 March 1989, Charge 1, with two specifications, was amended with only one specification to include the wrongfully possess about 5.5 grams of marijuana and 17 grams of hashish, with the intent to distribute some amount of said hashish. Therefore, specification two of Charge 1 was dismissed. Furthermore, only so much of the sentence as provides for the BCD, confinement for seven months, forfeitures of all pay and allowances, and reduction to the pay grade of E-1 was approved, and except for the BCD, was executed. 8. The U.S. Army Court of Military Review, dated 16 June 1989, found the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence was affirmed. 9. On 29 September 1989, the applicant was discharged with a BCD, pursuant to Army Regulation 635-200, chapter 3. His DD Form 214 shows he completed 1 year, 1 month, and 28 days of net active duty service with time loss from 21 February 1989 to 30 August 1989, a period of approximately 6 months and 9 days, due to his time in military confinement. 10. Counsel for the applicant provides the following information: a. An FBI report that shows the applicant was arrested on 18 December 1988 for four charges of: * possession/ use with intent to distribute hashish * possession/use of marijuana * possession/cocaine * no border document b. The court found the applicant was convicted at a GCM and was confined to the U.S. Army Correction Facility at Fort Riley, KS for a period of seven months. c. Fifteen affidavits of support on behalf of the applicant, which state, in effect: * he owns a small construction company and he is of sound mind and of good character * he always had the best interest of the community in mind when working or volunteering for community projects * he is a very active member of the Gun and Sportsman Club where he donates his time to various charitable events that support the local community * he is successful and responsible * hard working and is a highly respected in the community by both business owners and residents alike, for his honesty, values, and sound character * he has an excellent work ethic * very loyal to this nation, and is trustworthy * he is impeccable on both a personal and professional level and his character is great * his community and friends have known him for many years, to include many police officers who know him to be loyal, and of sound judgment * he has impressed people with his maturity and willingness to take on projects that help others * he runs a successful company and is a hard worker and uses his own time, including weekends to help others * he is overall quiet and has a reserved demeanor, and they would entrust him with their families * he would give the shirt off of his own back to help others when in need and is considered by the community as family * he is generous, punctual, and dependable worker * he is a man of his word, and is a pleasant and caring man of integrity and takes pride in the work he does * he is a caring individual who is the first to admit to any wrong doings in his past and has overcome obstacles to become successful d. Counsel provides a copy of the applicant's record of trial. 11. The Board should consider both the evidence provided by counsel and that provided in the service record in accordance with the published Department of Defense (DOD) equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board determined that a personal appearance was not required. They could reach a fair and equitable finding without a personal appearance from the applicant. Additionally, although the counsel for the applicant provided argument for mitigating the punishment on the basis of equity, as well as for other reasons, the Board found that no of those given rised to the level which would serve as a justification for changing the applicant’s characterization of service. Based upon the large quantity of drugs and the short term of service, the Board determined that the characterization of service received was warranted by the misconduct of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : FULL GRANT : : : PARTIAL GRANT : : : FORMAL HEARING GRANT :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. ? SIGNATURE: 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 prescribes the policy and procedures for enlisted separations. a. 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. 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. A BCD is issued pursuant only to an approved sentence of a general, or special court-martial that has been empowered to adjudge this discharge. The appellate review must be completed, and the affirmed sentence ordered duly executed. 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 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 (to include that provided by an applicant), 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. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20170013024 2