ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180000122 APPLICANT REQUESTS: The applicant requests upgrade of his bad conduct discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Four letters of support FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 he feels he made a mistake and was hit hard by his bad conduct discharge. He believes he served his country accordingly and his accomplishments speak for themselves. He enjoyed his tour of duty and realized he made a dumb mistake. Since his discharge, he has been a role model and become a better person; he has owned a business for 13 years, managed two stores, and has been married for 18 years. 3. The applicant provides four letters of support, with three dated in 1983, that describe him as a responsible individual who performed his duties as a postal clerk in an outstanding manner. He achieved commendable results in quarterly mailroom inspections, as well as inspector general evaluations. 4. The applicant's service records show: a. He enlisted into the Regular Army on 10 June 1976 for a 4-year term. Following initial training in military occupational specialty (MOS) 11B (Infantryman), orders assigned him to Germany. On 25 February 1980, he immediately reenlisted and, after completing advanced individual training for MOS 71L (Administrative Specialist), orders assigned him to Fort Polk, LA; he arrived on 28 July 1980. On 8 June 1982, he was awarded the Army Good Conduct Medal (2nd Award). b. On 1 April 1983, a special court-martial empowered to adjudge a bad conduct discharge convicted the applicant of Uniform Code of Military Justice violations. (1) The court convicted him of three specifications of wrongful distribution, and two specifications of wrongful possession of marijuana. (2) A military judge sentenced him to confinement for 3 months, forfeiture of $375 per month for 3 months, reduction from specialist five/E-5 to private (PV1)/E-1, and a bad conduct discharge. (3) On 27 April 1983, the special court-martial convening authority (SPCMCA) approved and directed the execution of only so much of the sentence as allowed for reduction to PV1/E-1, forfeiture of $300 per month for 3 months, and confinement for 3 months; the SPCMCA also approved the bad conduct discharge, but deferred its execution pending appellate review. The applicant was confined at the Fort Polk Detention Facility. c. Effective 6 June 1983, a special court-martial order deferred the remainder of the applicant's unserved sentence of confinement and forfeitures; he was placed on excess leave, pending the outcome of appellate action. d. On 24 August 1983, the U.S. Army Court of Military Review affirmed the applicant's findings of guilt and determined the sentence was correct in law and fact. On 3 February 1984, the U.S. Court of Military Appeals denied the applicant's petition to review the U.S. Army Court of Military Review's decision. e. On 21 February 1984, a special court-martial order announced the completion of the applicant's appellate review process and directed the execution of his bad conduct discharge. In addition, that portion of his sentence previously deferred was remitted. f. On 6 March 1984, the applicant was separated with a bad conduct discharge; his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed: * completed 7 years, 6 months, and 23 days of net active creditable service, with lost time from 830104 to 830605 * awarded or authorized the Army Good Conduct Medal (2nd Award), Army Service Ribbon; Overseas Service Ribbon; and two marksmanship qualification badges * prior reenlistments this period were 760610 to 800224 and 800225 to 840606 5. Although not required at the time, the September 2000 revision of AR 635-5 mandated the inclusion of remarks for separating Soldiers who received a less than honorable character of service; the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 6. The applicant acknowledges he made mistakes during his active duty service; he has since turned his life around, owning a business for 13 years, managing two stores, and being married for 18 years. 7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board has is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The applicant was remorseful and understands his actions were not that of all Soldiers. The Board agreed the misconduct does not warrant an upgrade to an honorable discharge; however, an under honorable conditions characterization is appropriate based upon the recorded misconduct with marijuana. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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 him a DD Form 214 showing his characterization of service as under honorable conditions. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. The Secretary of the Army shall make such corrections by acting through boards of civilians within the executive part of the Army. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. b. Paragraph 3-11 (Bad Conduct Discharge). A Soldier were given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review had to have been completed and the affirmed sentence ordered duly executed. 3. AR 635-5 prescribed policies and procedures for the preparation of the DD Form 214. The 1 October 1979 version of the regulation stated immediate reenlistments no longer required the issuance of DD Forms 214. Effective September 2000, the remarks section of the DD Form 214 was required to include dates of any immediate reenlistments. In cases where the separating Soldier received a less than honorable character of service, the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 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 (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) AR20180000122 2 1