ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 May 2019 DOCKET NUMBER: AR20180002354 APPLICANT REQUESTS: an upgrade of his dishonorable discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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. A review of the applicant's service record shows: a. He enlisted in the Regular Army on 8 December 1983 and he held military occupational specialty 63G (Fuel and Electric Systems Repairman). b. On 29 April 1986, he was convicted by a general court-martial of two specifications of being absent without leave and two specifications of distributing marijuana in the hashish form. c. The court found him guilty and sentenced him to reduction to the lowest enlisted grade of E-1, forfeiture of all pay and allowances, 18 months confinement, and a dishonorable discharge. d. On 17 July 1986, the convening authority approved the sentence, and except for the dishonorable discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. The U.S. Army Military Court of Review affirmed the findings of guilty and the sentence affirmed. e. General Court-Martial Order Number 778, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS on 3 November 1986, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's dishonorable discharge duly executed. a. f. On 13 May 1987, applicant was discharged by reason of court-martial with a dishonorable discharge under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations). The DD Form 214 he was issued shows he completed a total of 2 years, 3 months, and 13 days of creditable active military service and had lost time from 26 March 1986 to 12 May 1987. His D Form 214 also shows he was awarded or authorized the: * Rifle M-16 Sharpshooter Badge * Hand Grenade Expert Badge * Army Service Ribbon 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable discharge or bad conduct discharge. It stipulated that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. 4. 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, the Board determined that relief was warranted. Based upon the type of misconduct which led to the applicant’s discharge, the Board found the punishment too harsh; thus creating an injustice which warranted changing the characterization of service. For that reason, the Board recommended upgrading the characterization of service to Under Other Than Honorable Conditions (General). 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: 1. 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 the applicant a DD Form 214 showing his characterization of service as Under Other Than Honorable Conditions (General). X 5/30/2019 CHAIRPERSON Signed by: 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 635-200 provides for the separation of enlisted personnel: a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 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. 3. 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.