ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20180001194 APPLICANT REQUESTS: The applicant requests his dishonorable discharge be upgraded to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Self-Authored Statements * Orders 01-04, dated 31 January 1984 * Honorable Discharge Certificate, dated 27 January 1986 * Two Certificates: Narcotics Anonymous and Alcoholics Anonymous * Letter from Arkansas Department of Human Services (DHS), Division of Mental Health Services (DMHS), dated 12 February 1988 * Certificate of Training, History and Training, dated 18 February 1988 * Request for Extra Good Time Abatement, dated 10 March 1988 * Memorandum from the U.S. Disciplinary Barracks (USDB), Fort Leavenworth, KS, subject: Graduation from Philosophy of Man/Positive mind in Communication, dated 30 March 1988 * Letter from Arkansas DHS, 20 January 1989 * Certificate of Parole, dated 1 September 1989 * Memorandum from the Office of the Secretary of the Army, Department of the Army (DA) Review Boards Agency (SAMR_RB), dated 11 September 1989 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 17 September 1989 * Mississippi County Community College Training Certificate, dated February 1997 * Three Certificates of Attendance: "How to Supervise People," dated 19 November 2004, "The Art of Leadership," dated 2005, and "How to Become a More Effective Supervisor," dated 31 May 2006 * Department of Veterans Affairs (VA), Certificate of Eligibility, dated 28 March 2006 * Certificate of Ordination, dated 15 May 2011 * Five Letter/Character References * Applicant’s Resumé 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 submitted a DD Form 149 and two self-authored statements. He states: a. He is a 54 year old male. He is married to T_ D_ with two daughters, F_ D_, 10 years old, and A_ D_, 16 years old. He would like for the Board to know that he graduated out of high school in 1981 and he joined the military in 1982. He received an Honorable Discharge Certificate, Good Conduct Medal, and an Overseas Ribbon within his first four years. He reenlisted for three years. At the beginning of his three-year enlistment, he was involved with a substance called crack cocaine, which took over. He could not control it, which led him into the crimes of larceny/forgery and use of cocaine. Before this happened, his plan was to retire from the military. His military occupational specialty was a 75C10, Personnel Management Specialist, which was something he truly liked doing. b. He is apologizing for his dishonorable actions while he was in the military. For his crimes he served 2 years in Fort Leavenworth KS. He was released on parole and once he was released he started working in AR, at a factory to better his income so that he could live comfortably. As time went on he was hired at company in AR, which was his home town. He started working at Southwire in 1990 and went on to marry T_ D_ after she graduated out of college at state University as a registered nurse. During the time he worked at Southwire and attended Mississippi County Community College in AR, majoring in business management. He also attended school to be a certified First Responder and classes: "How to supervise people," "How to become a more effective supervisor," "The art of leadership, and Quarterly Regional Supervisor training. In 2009 Southwire transferred him to Southwire in Dallas, TX, in a supervisor position. His wife started working at Parkland Hospital in Dallas, TX, where she is currently working. c. He worked at Southwire for a total of 19 years. After being laid off with a service package, he started working at TX, as a Shipping/ Receiving/Distribution Supervisor. He managed 25 employees and he is still working at Parkland hospital. He is still happily married to T_ D_. They have been married for 18 years with two beautiful daughters, who are straight "A" students in school. Currently, he and his family attend church every Sunday where he is a deacon, his wife is a deaconess, and their kids sing in the choir. d. After he was released from Leavenworth, KS, he lived a drug free life for over 30 years. He does not blame anyone for his actions that caused him to receive a dishonorable discharge. He is a law abiding citizen. He is writing this letter requesting that the Board please upgrade his dishonorable discharge to a general discharge under honorable conditions and to forgive him for his dishonorable actions. This will make his life and his family life better. He would like to have the opportunity to use some of the great benefits the military has to offer. 3. On 9 March 1982, at the age of 18 years old, the applicant enlisted in the Regular Army. On 27 January 1986, he was honorably discharged for immediate reenlistment. On 28 January 1986, he reenlisted for a period of three years, with an expired term of service (ETS) of 27 January 1990. 4. His record shows his check cashing privileges were suspended on: * 11 April 1986, for three years for writing four dishonored checks * 8 September 1986 for six months for one dishonored check issued by his spouse * 8 September 1986 for three years for writing five dishonored checks 5. On 23 June 1987, the applicant was convicted by a general court-martial for: * attempt to utter a certain check with intent to defraud * conspiracy to commit larceny * wrongful use of cocaine * three specifications of larceny * seven specifications of forgery * four specifications of to utter checks with intent to defraud 6. He was sentenced to forfeiture of all pay and allowances, to pay a fine, to be reduced to private one (PV1)/E-1, confinement for ten years, and a dishonorable discharge. The applicant entered into a pretrial agreement and the convening authority agreed to disapprove any sentence to confinement in excess of four years. On 10 September 1987, the convening authority approved only so much of the sentence, in which, he approved the sentence as adjudged with the exception of the confinement; approved four years of the ten years adjudged. 7. On 28 June 1988, the U.S. Army Court of Military Review (USCMR) affirmed the findings of guilty and the sentence. The applicant petitioned the U.S. Court of Military Appeals (USCMA) for review of the USCMR decision and on 16 November 1988, the USCMA denied the applicant’s petition for review. On 12 January 1989, the sentence to the dishonorable discharge was executed. 8. On 17 February 1989, the applicant was discharged accordingly. His service was characterized as a dishonorable discharge as a result of a court-martial. He completed 5 years and 1 month of net active service this period, with 1 year, 4 months, and 15 days of Foreign Service. His DD Form 214 shows: * He was awarded or authorized: * Army Good Conduct Medal * Army Achievement Medal * Army Service Ribbon * Overseas Service Ribbon * M-16 Rifle Expert Marksmanship Qualification Badge * Hand Grenade Sharpshooter Marksmanship Qualification Badge * Dates of Time Lost During This Period as 870318-870320 and 870412-890127 9. The applicant provides: a. Orders 01-04, dated 31 January 1984, shows he was promoted to specialist (SPC)/E-4 effective 1 February 1984. b. Honorable Discharge Certificate shows he was honorably discharged on 27 January 1986. c. Two Certificates: Narcotics Anonymous and Alcoholics Anonymous shows the certificates were presented to the applicant for remaining drug and alcohol free for six months. d. Letter from Arkansas DHS, Division of Mental Health Services, dated 12 February 1988, shows the applicant requested assistance with admission to a drug rehabilitation program. e. Certificate of Training, shows the applicant successfully completed a course in History and Training on 18 February 1988. f. Request for Extra Good Time Abatement, dated 10 March 1988, shows his request for abatement was recommended for approval. g. Memorandum from the USDB, subject: Graduation from Philosophy of Man/Positive mind in Communication, dated 30 March 1988, shows he successfully completed the course. h. Letter from Arkansas DHS, dated 20 January 1989, informed the applicant that their office in Blytheville, AR, was not a drug rehabilitation program but worked with people who had mental health issues in conjunction with a past drug problem. i. Certificate of Parole, dated 1 September 1989, shows he was scheduled to be released on parole effective 3 October 1989, if certain criteria were met j. Memorandum from SAMR_RB, dated 1 September 1989, shows the SAMR_RB denied the applicant clemency regarding his discharge; however, granted him parole. k. Certificate of Parole, dated 1 September 1989, shows he was scheduled to be released on parole effective 3 October 1989, if certain criteria were met l. DD Form 214 for period ending 17 February 1989, shows he was awarded, among other awards, the Army Good Conduct Medal and the Overseas Service Ribbon. m. Mississippi County Community College Training Certificate, dated February 1997, shows he successfully completed the course. n. Three Certificates of Attendance: "How to Supervise People," dated 19 November 2004, "The Art of Leadership," dated 2005, and "How to Become a More Effective Supervisor," dated 31 May 2006, shows he attended the courses. o. Department of Veterans Affairs (VA), Certificate of Eligibility, dated 28 March 2006, shows the applicant’s loan entitlements. p. Certificate of Ordination, shows on 15 May 2011, the applicant was ordained as a deacon. q. Five Letter/Character References, provided to the Board that attest to the applicant’s character as a husband, father, supervisor, employee, and a friend. r. Applicant’s Résumé which includes his places of employment and his civilian professional experience, his military service, and his education. 10. The applicant states at the beginning of his three year enlistment he was involved with crack cocaine. He could not control it, which led him into the crimes of larceny/forgery and use of cocaine. Before this happened, his plan was to retire from the military. His record shows that he enlisted at the age of 18 years old and was convicted by general court-martial for attempt to utter a certain check with intent to defraud; conspiracy to commit larceny; wrongful use of cocaine; three specifications of larceny; seven specifications of forgery; and four specifications of uttering checks with intent to defraud. He completed 14 months of his 36 months contractual obligation. 11. Army Regulation (AR) 635-200 states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and a dishonorable discharge only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 12. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board 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. 13. In reaching its determination, the Board can consider the applicant's age at the time of his misconduct, his petition, and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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: 1 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 February 1989 is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry to item 18 (Remarks): "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 820309 UNTIL 860127." 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case: a. 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. b. 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. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. d. A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and a dishonorable discharge only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 3. Title 10, section 1552 provides court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. 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. 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 BCMRs 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, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. ABCMR Record of Proceedings (cont) AR20180001194 8 1