ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 January 2019

	DOCKET NUMBER:  AR20180010257


APPLICANT REQUESTS:  in effect, an upgrade of his dishonorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 in six years of service with no other adverse action.  He has had no legal problems prior to or after the incident and has been a model citizen.  He had a war back at home which involved his children and no one understood.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army (RA) on 27 January 1979.  He was honorably released to the U.S. Army Reserve on 19 June 1982.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) that credited him with 3 years of active service. 

	b.  He returned to active duty on 31 January 1984.  He served in Germany from 16 April 1984 to 7 January 1986.

	c.  He was convicted by a general court-martial on 8 January 1986 for one specification of wrongful introduction onto a military installation of 83.82 grams of hashish with intent to distribute, one specification of wrongful possession of marijuana, two marijuana plants, and 3.38 grams of hashish, and one specification of violating a lawful general regulation by wrongfully possessing drug paraphernalia.  His sentence included a dishonorable discharge, forfeiture of all pay for five years, confinement for five years, and reduction to the lowest enlisted grade.  

	d.  On 24 February 1986, the convening authority approved the sentence and except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed.

	e.  On 13 August 1986, he received nonjudicial punishment for failure to obey a lawful order.

	f.  General Court-Martial Order Number 650, dated 4 September 1986, after Article 71(c) was complied with and the sentence was affirmed, ordered the dishonorable discharge executed.

	g.  He was discharged from the Army on 9 February 1987 with a dishonorable discharge.  His DD Form 214 shows he completed 1 year, 11 months, and 2 days of active service, 3 years of prior active service, and 2 years and 4 days of prior inactive service.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Non-commissioned Officer Professional Development Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  By regulation, a member 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.

5.  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 review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions 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 did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the amount of drugs involved in the misconduct which led to the applicant’s separation, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of 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:

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), sets forth the basic authority for the separation of enlisted personnel.

	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 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) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under other than honorable conditions) 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, homosexuality, security reasons, or for the good of the service.

	d.  Paragraph 3-10 (Dishonorable Discharge Certificate) states a member 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.

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.

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 an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180010257


5


1