ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  16 September 2019

	DOCKET NUMBER:  AR20170013658


APPLICANT REQUESTS:  an upgrade to his dishonorable discharge to a general under 
honorable conditions

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
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 it has been 15 years since his discharge from the service.  He 
would like an upgrade of his characterization of service to a general under honorable 
conditions for medical and insurance reasons.

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

	a.  He enlisted in the Regular Army on 7 January 1992.

	b.  He served in Germany from 26 July 1992 to 29 January 1997.

	c.  General Court Martial Order Number 23, dated 14 April 1997, shows the 
applicant was convicted of:

*	one specification of possessed lysergic acid diethylamide (LSD)
*	one specification of conspired to wrongfully distribute ecstasy
*	one specification of wrongfully distributed ecstasy
*	wrongfully introduced more than 25 tablets of ecstasy onto an installation 
under control of the armed forces with intent to distribute
*	one specification wrongfully used ecstasy
*	wrongfully used marijuana

The sentence was adjudged on 30 January 1997, and directed he be reduced to the 
lowest enlisted grade of Private (PV1)/E-1, forfeited all pay and allowances, confined for 
a period of 4 years, fined $3,400, and in the event the fine was not paid the applicant 
would be confined for an additional 12 months in addition to the confinement adjudged, 
and be dishonorably discharged from the Army.  

   d.  One 14 August 1997, the sentence of reduction to PV1/E-1, forfeiture of all pay 
and allowances, confinement for 42 months and dishonorably discharged was approved 
and except for the part of the sentence extending to the dishonorable discharge will be 
executed.

	e.  On 15 August 1997, the appellate review found the findings of guilty and the 
sentence as approved by the convening authority to be correct in law and fact.  
Accordingly, those findings of guilty and the sentence were affirmed.

	f.  General Court Martial Order Number 49, dated, 6 December 2000, the sentence 
of reduction to PV1/E-1, forfeiture of all pay and allowances, confinement for 42 months 
and dishonorably discharged that was adjudged on 30 January 1997 and had been 
finally affirmed had been complied with, the dishonorable discharge will be executed.

	g.  United States Disciplinary Barracks Order Number 002-04 dated 8 January 2001, 
discharged the applicant under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel) effective 26 January 2001.

	h.  He was discharged from active duty on 26 January 2001 with a dishonorable 
characterization of service as a result of court martial in the grade of PV1/E-1 under the 
provisions of AR 635-200.  His DD Form 214 (Certificate of Release or Discharge) 
shows he completed 5 years and 23 days of active service.

	i.  General Court Martial Order Number 51, dated 24 August 2001, the unexecuted 
portion of the sentence to confinement was remitted effective 14 June 2001.  The 
applicant was previously discharged and received a dishonorable discharge.

4.  The applicant's record is void of evidence that shows he applied for a discharge 
upgrade with the Army Discharge Review Board within 15 years of the separation.

5.  By regulation 635-200 (Personnel Separations – Enlisted Personnel), 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.

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 review of the application and all evidence, the Board determined relief is not 
warranted.  The applicant’s contentions 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.  He did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  Based upon the offenses of a criminal nature, as well as the drug offenses 
included the distribution to others, 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.

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

   a.  Paragraph 3-10 (Dishonorable Discharge), 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.
   
   b.  Paragraph 3-7a (Honorable Discharge), 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 otherwise so meritorious that any other 
characterization would be clearly inappropriate.
   
   c.  Paragraph 3-7b (General Discharge), 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.

3.  Title 10, U.S. Code, section 1552, provides that the Secretary of a Military 
Department may correct any 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 Uniform Code of Military Justice, 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 Uniform Code of Military 
Justice 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 the 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 Corrections of 
Military/Naval Records regarding equity, injustice or clemency determinations.  
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs may grant clemency regardless of the court-martial forum.  However, the 
guidance applies to more than clemency from a sentencing in a court-martial; it also 
applies to any other corrections, including changes in discharge, which may be 
warranted on equity or relief from injustice grounds, BCMRs shall consider the twelve 
stated principles in the guidance as well as eighteen individual factors related to an 
applicant.  These factors include the severity of the misconduct and the length of time 
since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013658

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