ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 September 2019 DOCKET NUMBER: AR20180013314 APPLICANT REQUESTS: thru counsel to: * upgrade the characterization of his discharge to honorable * change the narrative reason of his discharge to “For the Convenience of the Government” * change his reenlistment eligibility (RE) Code to 1 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Legal Brief * Personal Affidavit of Applicant * Letters of Support 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 is presently an independent driver for a company called Lyft. He has been out of the military for over 30 years. During that time he has been with his wife for 27 years. Together they raised two young men, age 25 and 22 years old. b. He joined the Army in 1984 after graduating from Redondo Beach High School. He was Infantry and did his basic training with 230 trainees. With only 167 graduating, he graduated third in his class and earned a stripe. From there they went to Fort Lewis, WA where they trained for two years before their company went to Korea for a one-year tour. c. He never saw that due to his arrest and court-martial. In the summer of 1985, he was 19 years old and was court-martialed for the sale and possession of methamphetamine. He was released from Fort Leavenworth, KS on 17 July 1987. He was 22 years old with a dishonorable discharge. He doesn’t blame anyone but himself. He received three years hard labor and a dishonorable discharge. d. However, the dishonorable discharge is something that prohibits him at every turn. There have been many work projects with the ironworkers that he has not been allowed to work because he could not pass the background check. He could not coach a high school wrestling team and he could not get an insurance license due to the background check. e. Like most 22-year-old men with nothing more than a high school diploma, he did whatever it took to pay the bills. He worked multiple jobs. He had many different jobs from age 22 to 31 years old. At 30 years old his second son was born and he knew he needed a career and not just a job to take care of my family. That was when he started with the Ironworkers Union Local 433. He started in the apprenticeship program where he finished their three-year apprenticeship program and graduated to a journeyman ironworker where he spent almost 20 years working. f. During that time, he raised a family of two young men who both graduated from high school. His boys were accepted to the Electricians Union Apprenticeships IBEW and will be journeyman electricians once they are finished and graduated from their 5-year apprenticeship program. His oldest son has already graduated and is a journeyman electrician working on the Los Angeles Metro Transportation in CA. His youngest son will be graduating in June 2018 and is also working on the Los Angeles Metro Transportation street lights in CA. g. At the end of his ironworkers career his wife retired from the State of CA, put her resume online, and was hired with the Department of Veteran Affairs in Colorado Springs, CO. He and his wife now reside in CO where they bought a home. h. He has lived with a dishonorable discharge since 7 July 1987 when he was released from Fort Leavenworth, KS Federal Penitentiary. It has been over 30 years. He is 53 years old. He doesn’t know how much longer he has to live, but he would like to spend the rest of my life with any upgrade other than the dishonorable discharge. He served his sentence and paid his dues. He has rehabilitated himself and has been an asset to society since his release. He feels for him to continue a life with a dishonorable discharge is wrong. 3. The applicant provides: a. A legal brief prepared by his military law attorney. The petition to correct his military record is based on three errors: (1) the underlying basis of his separation was procedurally defective at the time of the discharge; (2) the adverse action, to include the administrative discharge, was unfair at the time; and (3) the punitive discharge is inequitable now. (1) There is a procedural defect in this case. The Manual for Courts-Martial sets forth the requirements for crimes under the Uniform Code of Military Justice (UCMJ). The applicant was ultimately convicted of two different offenses. These offenses all were similar in nature and were charged multiplicious by the Government. This type of charging is prohibited by US v. Quiroz and the military judge failed to properly rule on the Government overcharging. The Army Court of Criminal Appeals (ACCA) should have reversed the military judge in this case. ACCA should have overturned the convictions as being an unreasonable multiplication of charges for an abuse of discretion. United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004). On appeal, it was stated "what is substantially one transaction should not be made the basis for an unreasonable multiplication of charges against one person." Rule for Courts-Martial 307(c)(4). This principle is well established in military law. United States v. Quiroz, 55 M.J. 334, 336-37 (C.A.A.F. 2001). Prior to trial in this case, the Army Court published an opinion of the Court holding separate convictions for two assaults within the same altercation were unreasonable. United States v. Clarke, 74 M.J. 627,628 (Army Ct. Crim. App. 2015). Citing this Court's opinion in United States v. Flynn, the Army Court noted, "Congress intended assault, as prescribed in Article 128, UCMJ, 10 U.S.C. § 928, to be a continuous course of conduct type offense and that each blow in a single altercation should not be the basis of a separate finding of guilty." Id. (citing 28 M.J. 218,221 (C.M.A. 1989))." The applicant’s case falls directly within the purview of US v. Clarke and US v. Quiroz. When reviewing the applicant’s providence inquiry in his record of trial (ROT), the applicant clearly details that there were multiple charges that were a single transaction and not multiple assaults. The military judge abused his discretion by not finding that the applicant was guilty of only a single specification. Due to this error, the sentencing in this case was not appropriate. When lowering the overall culpability of the applicant by lowering the overall number of charges, the applicant should have been resentenced. The lowered culpability should have allowed him to ask the military judge to allow him to stay in the military. Should this have happened, he would very likely have been separated after the court-martial, but the separation would have been an other than honorable discharge or a general under honorable conditions discharge. This was a more appropriate result. (2) The punitive discharge was substantively unfair at the time of the applicant’s separation. The applicant’s letter details his thinking at the time he committed the offenses. He has changed. The applicant states he has a solid marriage and has lived a stable life for the past 30 years. He is also working hard and has continued his employment for years now. (3) Finally, the punitive discharge does not serve a proper purpose. The applicant has successfully completed his confinement. He should be allowed to apply for Veteran Administration benefits. All of his time, separate these single incidents, have been honorable service. He would also require his educational benefits. The events that took place are no longer relevant to the applicant's life and he has lived since in as responsible a manner as he could. There is no valid equitable purpose in leaving the discharge in place. b. A personal affidavit outlined in paragraph 2 of this document. c. Letters of support from: (1) X___ who states he and the applicant have been friends and a client since 2011. Further, he claims the applicant has a great sense of humor and exceptional gift with people. He says the applicant has no reluctance to hard work and is very gifted in sales and marketing. (2) X___. who states the applicant worked with him as his assistance coach and is a valuable asset. They were kindred spirits who believed in hard work and dedication. The applicant was always positive. Working with the application was one of the brightest spots in his life. He further states the applicant is an exemplary citizen. (3) X___. who states she is the mother-in-law to the applicant. She was able to see him change over the years. She states he is a good father and husband. He is a good provider for his family. His ability to provide for his family has shown his confidence, responsibility, and trustworthiness. (4) X___. who states the applicant was the first journeyman ironworker he worked for as an apprentice. They became good friends and their families spent time and holidays together. He further states the applicant has an uncanny ability to make people laugh and could always be relied on. The applicant has given him money when he found himself in financial trouble. The applicant is a good man, a family man, and one of the best friends he has had in his life. (5) BX___ who states the applicant is his brother. The applicant has always been there for him in one way or another. As long as he can remember, the applicant has been a law-abiding citizen and instilled that in him. (6) X___ who states he has known the applicant for about 10 years. The applicant is his fishing partner and has worked for him in the past. The applicant showed up to work on time and did quality work. He is an outstanding citizen, excellent father, a very responsible human being, and his friend. 4. A review of the applicant’s service record shows: a. On 14 February 1984, he enlisted in the Regular Army. b. On 8 March 1985, he was tried by general court-martial and was found guilty of one specification of attempt to wrongfully possess with intent to distribute one ounce of methamphetamine, one specification of conspiracy to wrongfully distribute methamphetamine, two specifications of wrongful distribution of methamphetamine, and two specification of wrongful introduction of methamphetamine, He was sentenced to reduction to the grade of private (PVT)/E-1, to forfeit all pay and allowances, to be confined for three years, and to be discharged from the service with a dishonorable discharge. c. On 30 December 1985, General Court-Martial Order Number 441, affirmed the sentence to dishonorable discharge, forfeiture of all pay and allowances, confinement for three years, and reduction to the grade of PVT/E-1 and ordered executed. d. On 22 January 1986, he was discharged from active duty under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-10 (Dishonorable Discharge)), and issued a dishonorable discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that the completed 8 months and 27 days of active service with 453 days of lost time from 11 November 1984 to 7 February 1986. It also shows that he was awarded or was authorized the: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar e. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. 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. 6. 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 and letters of support 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 evidence of post-service achievements for the Board to consider. Based upon the multiple drug offenses which included the distribution of illegal drugs 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, reason, and reentry code were 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 635-200 (Personnel Separations – Enlisted Personnel), 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 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 by 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 service. d. Paragraph 3-10 (DD Form 260A (Dishonorable Discharge)) 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. 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 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) AR20180013314 3 1