ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20170019832 APPLICANT REQUESTS: an upgrade of his dishonorable discharge to a general under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharged from the Armed Forces of the United States) * Letter of Support 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 his discharge was based on one isolated incident during his whole military career. He has not been in any other trouble in his life. He is seeking to get his veterans benefits. 3. The applicant provides a letter from his pastor stating he has known him for the past five years and he is currently serving as the church administrator and an associate minister. He is very passionate about his relationship with God, family and his church. He can vouch for his character. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 2 February 1994. b. He served in Panama from 21 January 1996 to 10 December 1997 and in Germany from 15 May 1998 to 5 November 1998. c. He was convicted by a general court-martial on 1 August 2001, for conspiring to wrongfully import cocaine into the United States. The court sentenced him to be discharged with a dishonorable discharge; to be reduced to the grade of Private/E-1, to forfeit all pay and allowances, and to be confined for 18 months. d. General Court-Martial Order Number 83, dated 8 April 2004 finally affirmed the sentence. Article 719(C) having been complied with the dishonorable discharge will be executed. e. The applicant was discharged on 27 August 2004. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of court-martial conviction with a dishonorable characterization of service. He completed 9 years, 6 months and 1 day of net active service. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the Board’s 15 year statute of limitations. 6. By regulation, 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. 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 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 drug offenses which resulted in the applicant’s separation included large amounts of distribution to others, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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 forth the basic authority for the separation of enlisted person a. Paragraph 3-7a (Honorable Discharge) states 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 is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states 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 3-10 (Dishonorable discharge) states a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general cour-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 form 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 the 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 based on 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) AR20170019832 3 1