ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20170016953 APPLICANT REQUESTS: an upgrade of this under other than honorable conditions discharge. 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) * Affidavit 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 there were a few different events which led to him receiving an under other than honorable conditions discharge. He was apprehended along with 23 of his fellow platoon members on drug related charges. Some were offered nonjudicial punishment if they would testify against others, but he was told that he would be facing a general court-martial. When he met with his judge advocate, the lawyer explained to him that because of the way the military stacked charges he was facing 45 years in confinement. He agreed to plead guilty to all charges. He would only have to serve 18 months and then be discharged. So, he agreed at the court-martial he testified to all charges and was sentenced to 18 months and a dishonorable discharge. He believes that because he was military police, he was judged more harshly than he would have been if he were in the some other military occupational specialty or under some other commander. 3. A review of the applicant’s service records show the following: a. He enlisted in the Regular Army (RA) on 26 September 1975. b. He received nonjudicial punishment on 1 July 1976 for violating a lawful general order. c. He received nonjudicial punishment on 1 February 1976, for failing to report to his appointed place of duty. d. He was convicted by a general court-martial on 11 July 1978 of: * three specifications of violating a lawful general order * one specification of stealing marijuana * six specifications of possessing marijuana * one specification of conspiring to commit an offense e. The court sentenced him to forfeiture of all pay and allowances, confinement at hard labor for 2 years, to be dishonorably discharged, and reduction to the grade of E-1. f. On 5 October 1978, the convening authority approved the sentence of a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 2 years, and reduction to E-1. He forwarded the record of trial for review by a Court of Military Review. g. The U.S. Army Court of Military Review affirmed the findings of guilty on 27 December 1978 h. General Court–Martial Order Number 164, dated 2 April 1979 affirmed and ordered the sentence duty executed. i. He was discharged from the Army on 9 May 1979. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separation) with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate. It also shows he completed 2 years, months, and 7 days of active service. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge (45 Pistol) 4. By regulation, state what the governing regulation says about issuing a bad conduct discharge to a Soldier, but only after the sentence has been through appellate review and ordered duly executed. 5. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. One potential outcome discussed was based upon the relative short term of service and multiple UCMJ violations denying the applicant’s request for relief was appropriate. However, the Board found the statement of the applicant honest and plausible, because he accepted responsibility for his drug use. Based upon his demonstrated growth, the Board concluded clemency was warranted by upgrading his characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X : X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X : 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 reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13 (Honorable discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. b. Paragraph 1-13b (General discharge) A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-13c (Under other than honorable conditions) A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service d. Paragraph 11-2 (Bad Conduct Discharge ) A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 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 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 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and ABCMRs 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. The 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, an injustice, or clemency grounds, ABCMRs 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. ABCMR Record of Proceedings (cont) AR20170016953 5 1