ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 July 2019 DOCKET NUMBER: AR20180012974 APPLICANT REQUESTS: an upgrade of his bad conduct discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 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: a. He went in the Army after living in a domestic violence situation. He joined the Delayed Entry Program on 8 February 1978, to escape violence in his household. He scored high in his Advanced Individual Training (AIT) course and was able to eat with the commander on post because of his high score achievements. His patriotic duty has always been to serve in the Army as an outstanding Soldier. He received two Army Good Conduct Medals and an Army Achievement Medal. His dream was to pursue a career with the Army and retire. b. One night the U.S. Army Criminal Investigation Command (CID) came to his room when he was stationed in Germany as a private and said that the applicant had given him a controlled substance and that he had given him $40.00. When CID came to investigate they asked him for his wallet and found two $20.00 bills, which he had gotten from the bank earlier that day because he had just gotten paid. But CID thought that the $20.00 bills proved that it was true what the private had said that the applicant sold him illegal substances. It was not true just because he had two $20.00 bills on him. He tried explaining to CID that he did not have, or sell any drugs, or had not consumed any illegal substances. So they left and he went to sleep. The next day he had to see the first sergeant of his company and then found out that he was getting court-martialed. He was court-martialed because the two $20.00 bills matched up to some serial numbers off the money that he had from the private and he went to prison for 75 days. c. He had never gotten in any trouble before and was an outstanding Soldier. He felt that he was set-up and black-balled and no one would listen to him. His good character was damaged. Again, he had received two Army Good Conduct Medals and an Army Achievement Medal, he had just reenlisted for his third term and felt he was on his way to retire from the Army. He was framed for something he did not do. He lost his rank from sergeant/E-5 to private/E-1, totally humiliated. He never sold any drugs. He has been hurting for 31 years about this wrong discharge and prays that the Board will help him and grant him his upgrade to general under honorable conditions. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army (RA) on 14 July 1978. He reenlisted on 20 March 1981 and on 5 December 1985. b. He served in Germany from 11 February 1983 to 17 February 1986. c. On 14 April 1986, he was convicted by a special court-martial of one specification each: * possession of drug paraphernalia on 7 January 1986 * wrongfully using of hashish on 19 August 1985 * wrongfully distributing two grams, more or less, of hashish on 7 January 1986 * wrongfully possessing hashish on 7 January 1986 * wrongful using hashish on 7 January 1986 d. The court sentenced him to reduction to the grade of E-1, forfeiture of $400.00 pay per month for 3 months, confinement for 3-months, and a bad-conduct discharge. e. On 30 July 1986, the convening authority approved the sentence and except for the part of the punishment extending to bad-conduct discharge, order it executed. The record of trial was forwarded to the appellate authority for appellate review. f. On 2 September 1986, Special Court-Martial Order Number 32, shows the action taken on 30 July 1986, was withdrawn and substituted with the sentence, was approved and except for the part of the punishment extending to bad-conduct discharge, will be executed and the record was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. g. On 16 October 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. h. Special Court-Martial Order Number 11, dated 23 January 1987, shows the sentence was affirmed, the provisions of Article 71(c) having been complied with, and the sentence would be duly executed. That portion of the sentence pertaining to confinement has been served. i. On 3 March 1987, the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of his court-martial conviction in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, with a bad conduct discharge. He completed 8 years, 5 months, and 8 days of active service with lost time from 19 May 1986 to 31 July 1986. It also shows he was awarded or authorized the: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M16) * Army Good Conduct Medal (2nd Award) * Army Achievement Medal * Driver Badge with Bar 4. By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special 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 partial relief was 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 multiple drug offenses including distributing to others, 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. However, the Board noted that the applicant had prior periods of honorable service which are not currently reflected on his DD Form 214 and recommended that be corrected to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X 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 partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 14 July 1978 to 4 December 1985.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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) 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Soldiers), in effect at the time, 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 the 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 3-11 (Bad Conduct Discharge) states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 4. 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 UCMJ, 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 UCMJ 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012974 4 1