ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 August 2019 DOCKET NUMBER: AR20170018297 APPLICANT REQUESTS: * an upgrade of his bad conduct discharge to honorable * an appearance at a hearing before the Board closest to Chas or Columbia, SC 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) * DD Form 214 (Certificate of Release or Discharge From Active Duty) * Reference Letter from X___ * Reference Letter from X___ * Reference Letter from X___ * Reference Letter from X___ * Reference Letter from X___ 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: a. He prays the military would consider a compassionate change in his character of discharge and that it takes in consideration that he was young and manipulated by bad choices from other folks. He was a follower and he is usually a wise decision maker, but clearly he understands that his decisions while he served in 2006, were extremely bad choices and should not haunt or hang over him for the rest of his life. b. He has been a reputable person in his family life, employment, friendships, spiritual church life and within his community. Since the military, he has gone back to school and has had gainful employment with no criminal history or activities. It would mean the world to him to have his tarnished choice removed from his DD Form 214. He asks the Board to consider his character statements and his plea for character of discharge change. 3. The applicant provides: a. Reference letter from X___which states he has known the applicant for years and considers him to be a good friend. The applicant first started at South Carolina Department of Transportation (SCDOT) state level in 2007 in Shep division after being transferred to traffic signal and he quickly showed his potential to learn their systems and showed his leadership abilities. He saw many of the districts traffic signal projects and helped to maintain traffic signal infrastructure with their district. While with the SCDOT, he was not only a valuable team asset, but also assertive when it came to customer relations and helping the public with traffic concerns. He could not have asked for a better employee for he always showed great leadership, work ethics and drives to excel at any task put before him. b. Reference letter from X___ which states he is pleased to write a letter of recommendation for the applicant and he highly recommends his as a candidate for the organization. He has been with Boeing Company for 2 years and he has worked with him for the past 8 months. The applicant possesses very strong leadership skills, commitment to excellence and consistently surpasses goals set for both himself and his team. He has exceptional written and verbal communication skills that work independently and within group, and he was routinely called upon to complete their most difficult tasks. The applicant would be a very productive and valued member of any organization and he recommends him for any endeavor he chooses to pursue. c. Reference letter from X___, dated 20 October 2015, which states the applicant is a pastor and an upright man who has high integrity and morals. He is found to be of great character and carries himself as an example for others. He is as hard worker who is dedicated to his family and the man who he has met many years ago is the same man as today. d Reference letter from X___ which states he has known the applicant for a few years and has worked as the MUSC Grounds Department Mechanic under his direction. The applicant was efficient, detail-oriented, and highly respected within the Grounds Department. He was very organized and always finished projects in a timely manner and was willing to put his work on hold to help anyone with more pressing matters. He stepped in other projects that was outside of his realm of work and his helpfulness and willingness to learn new trades was one of his greatest attributes. e. Reference letter from X___ states he worked directly with the applicant as his manager he was always prompt and punctual even through fluctuating schedules. The applicant brought a positive attitude and performed thorough and diligent work. He was assigned to an area that was deeply behind schedule and he played a very instrumental role in the team’s burn down. He was hard working and a competent mechanic with great leadership capabilities and as the team’s headcount increased, he could depend on him to take 4 or 5 less trained employees and guide them through a task. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 1 July 1998. b. On 30 November 2004, he was convicted by a general court martial for two specifications. Specification one was for distribution of 8 pounds of marijuana and one count of wrongful possession of less than 30 grams of marijuana. Specification two was for wrongful possession of less than 30 grams of marijuana and wrongful use of marijuana on divers occasions. The court sentenced him to reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for 13 months, and a bad-conduct discharge. The sentence is approved except for the bad conduct discharge will be duly executed. c. General Court Martial Order 184, dated 4 August 2006 shows the applicant’s punishment as reduced to the grade to Private/E-1, forfeiture of all pay and allowances, confinement for 13 months, and a bad conduct discharge adjudged on 30 November 2004 and promulgated in General Court Martial Order 6, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss. This portion of the sentence extending to confinement has been served. The bad conduct discharge will be executed. d. The applicant was discharged on 28 December 2006. His DD Form 214 shows he was discharged in the rank/grade of Private/E-1, as a result of his general court-martial conviction in accordance with Army Regulation AR 635-200 (Personnel Separations - Enlisted Personnel), Chapter 3, with a bad conduct discharge. He completed 7 years, 8 months and 1 day of creditable active military service with 458 days of lost time from 27 September 2005 to 28 December 2006. His DD Form 214 also shows he was awarded or authorized the: * Army Commendation Medal * Army Good Conduct Medal * National Defense Service Medal * Global War On Terrorism Service Medal * Korea Defense Service Medal 5. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 6. By regulation (AR 635-200), a Soldier 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. 7. 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 partial relief is warranted. The applicant’s contentions and reference letters 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 is remorseful for the events leading to his separation. Based upon the amount of drugs involved in the misconduct, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 1 July 1998 until 29 November 2004.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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. AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). 3. Army Regulation 635-200 provides for the separation of enlisted personnel: a. Paragraph 3-7a (Honorable Discharge) provides that 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. b. Paragraph 3-7b (General Discharge) provides that 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. Paragraph 3-7c 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, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 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. 4. 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. 5. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018297 5 1