ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  30 April 2019

	DOCKET NUMBER:  AR20170018221


APPLICANT REQUESTS:  Upgrade of his dishonorable discharge (job related).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 Certificate of Release or Discharge From Active Duty)

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 over 30 years.  He has worked very hard on his own.  Now he is in need of a job.  This was an isolated incident in 40 plus months of service.  He has done his time and served his country.  Now he needs a chance to get a decent job.  God bless us all (inequity – lifetime).  He does not know what else to say.  It has been so many years ago.  He was so young.  He needs an upgrade so he can apply for a good job and upgrade his life and get this off of his chest.  No matter what, he is proud of his country.

3.  The applicant provides:  His DD Form 214 showing he completed 3 years, 9 months, and 19 days of active service.

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

	a.  He enlisted into the Regular Army on 23 January 1979.

	b.  On 13 October 1981 he accepted non-judicial punishment for failure to obey order or regulation.  His punishment included reduction to private first class/E-3, forfeiture of $142.00, and extra duty for a period of 14 days.

	c.  On 12 November 1982, he was convicted by a general court-martial of one specification of conspiracy, pled not guilty finding not guilty; one specification of larceny and wrongful appropriation, pled not guilty finding guilty; and one specification of wrongfully use of marijuana pled guilty finding guilty. The court sentenced him to be confined at hard labor for two and a half years, forfeiture of all pay and allowances; reduction to private/E-1; and a dishonorable discharge. 

	d.  On 17 February 1983, the convening authority approved the sentence, and except for the dishonorable discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

	e.  On 8 August 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

	f.  On 19 September 1983, the applicant was notified and advised of his right to petition the U.S. Court of Military Appeals for a grant of review with respect to any matter of law within 60 days.  Record is void of any appeal.

	g.  On 23 January 1984, the convening authority ordered the sentence duly executed.

	h.  On 13 February 1984, the applicant was discharged in the rank/grade of private/E-1.  His DD Form 214 shows he was discharged as a result of court-martial with a dishonorable characterization of service.  It also shows:

* he completed 3 years, 9 months, and 19 days of active service and he was retained in service for 387 for convenience of the government per 
AR 635-200
* he was awarded or authorized Good Conduct Medal, Army Service Ribbon, , and Expert Rifle M16 Badge, Expert Hand Grenade Badge, Expert Pistol .45 Caliber Badge, and Expert 81mm Badge

5.  By regulation, 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.

6.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

7.  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 not warranted.  Based upon the seriousness of the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate.  For that reason, the Board recommended denying the applicant’s request for relief.

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 Separation–Enlisted Personnel, in effect at the time, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons.

	a.  Paragraph 3-7a (Honorable discharge) 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 acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to AD or ADT, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted.

	b.  Paragraph 3-7b (General discharge) 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) A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.

	d.  Paragraph 3-10 states 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.

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, 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.

ABCMR Record of Proceedings (cont)	 AR20170018221


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