ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  19 April 2019

	DOCKET NUMBER:  AR20180013990


APPLICANT REQUESTS: 

*	in effect, a review and upgrade of his bad conduct discharge 
*	copies of his DD Forms 214 (Certificate of Release or Discharge from Active 
Duty) for his two terms of service

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 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  However, the Army Board for Correction of Military Records 
(ABCMR) 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 he would like the Board to look into his discharge; he believes 
he should have a DD Form 214 for his first term of honorable service from 1993 to 
1998.  He reenlisted in 1998 and it was during this second period he received his bad 
conduct discharge.  He requests copies of his DD Forms 214 and wants his records to 
correctly reflect his service.

3.  The applicant's records show:

	a.  He enlisted into the Regular Army on 4 November 1993.  At some point prior to 
September 1997, his leadership promoted him to specialist (SPC).  Permanent Orders 
awarded him the Army Good Conduct Medal (1st Award) for the period 4 November 
1993 through 3 November 1996.  He immediately reenlisted for a 4-year term on 
30 January 1997.

	b.  On 2 April 1998, a general court-martial convicted him of multiple violations of the 
Uniform Code of Military Justice (UCMJ).

		(1)  The charges for which he was convicted were:

*	Article 81 (Conspiracy) – conspiring with other Soldiers to commit the 
wrongful distribution of marijuana
*	Article 112a – on divers occasions, wrongfully distributed marijuana
*	Article 134 – wrongfully communicated a threat to another Soldier; wrongfully 
endeavored to impede an investigation

		(2)  The court sentenced him to forfeiture of all pay and allowances, confinement 
for 7 years, reduction from SPC to private/E-1, and a bad conduct discharge.  

		(3)  On 6 August 1998, with the exception of the bad conduct discharge, the 
general court-martial convening authority approved the sentence and ordered its 
execution.   In addition, the applicant was credited with 260 days of confinement.

	c.  At some point prior to 21 September 2001, the applicant's appellate review was 
completed.  On 21 September 2001, a general court-martial order (GCMO) announced 
the applicant's sentence had been affirmed; the GCMO ordered the execution of the 
applicant's bad conduct discharge and he was discharged accordingly on 2 November 
2001.  

	d.  His DD Form 214 indicated he completed 9 months, and 27 days of his second 
term of enlistment, with lost time from 19971030 to 20011102.  He had continuous 
honorable service from 19931194 to 19971029.  He was awarded or authorized the 
Army Achievement Medal, Army Good Conduct Medal (1st Award), National Defense 
Service Medal, Army Service Ribbon, and Army Lapel Button.

4.  By law and regulation, the ABCMR's role is to correct military records; it is not the 
custodian of those records.  The National Personnel Records Center, under the 
National Archives, is responsible for maintaining military personnel records; copies of a 
Soldier's DD Form 214 can be obtained by submitting of a Standard Form 180 (Request 
Pertaining to Military Records).  This form, with instructions for completion and 
submission, is available online at www.archives.gov.

5.  Effective 1 October 1979, the Army discontinued the practice issuing of DD Forms 
214 for immediate reenlistments.  The September 2000 revision of AR 635-5 mandated 
the inclusion of remarks pertaining to dates for immediate reenlistments.  In cases 
where the separating Soldier received a less than honorable character of service, the 
regulation required the addition of the following remark:  "CONTINUOUS HONORABLE 
SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before 
commencement of current enlistment)."

6.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  The Board is not empowered to re-adjudicate or set aside a conviction, 
but can only change the severity of the sentence imposed.  In reaching its determination, 
the Board can consider the applicant's petition, his service record, and his statements in 
light of the published 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 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.  His DD Form 214 appropriately displays his period of honorable 
service as regulatory guidance during his period of service did not provide for the 
issuing of separation documents upon immediate reenlistments.  He did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  Based upon the record, 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.


ADMINISTRATIVE NOTE(S):

Not Applicable

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within 3 years after discovery of the alleged error or injustice.  This 
provision of law also allows the ABCMR to excuse an applicant's failure to timely file 
within the 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.  With respect to 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 actions 
taken by reviewing authorities under the UCMJ or action on the sentence of a court-
martial for purposes of clemency.  The Secretary of the Army shall make such 
corrections by acting through boards of civilians within the executive part of the Army.

2.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set 
forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was 
separation with honor.  Issuance of an honorable discharge certificate was appropriate 
when the quality of the Soldier's service generally met the standards of acceptable 
conduct and performance of duty, or was otherwise so meritorious that any other 
characterization would clearly be inappropriate.  Where there were infractions of 
discipline, commanders were to consider the extent thereof, as well as the seriousness 
of the offense.  An honorable discharge could be furnished when disqualifying entries in 
the Soldier's military record was outweighed by subsequent honest and faithful service 
over a greater period of time.  It was the pattern of behavior, and not the isolated 
instance, which commanders should consider as the governing factor.

	b.  Paragraph 3-7b (General Discharge) stated a general discharge was a 
separation from the Army under honorable conditions.  When authorized, it was issued 
to a Soldier whose military record was satisfactory but not sufficiently meritorious to 
warrant an honorable discharge.

	c.  Paragraph 3-11 (Bad Conduct Discharge).  A Soldier were given a bad conduct 
discharge pursuant only to an approved sentence of a general or special court-martial.
The appellate review had to have been 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 on the basis of 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.

4.  AR 635-5 prescribed policies and procedures for the preparation of the DD Form 
214.  The 1 October 1979 version of the regulation stated immediate reenlistments no 
longer required the issuance of DD Forms 214.  Effective September 2000, the remarks 
section of the DD Form 214 was required to include dates of any immediate 
reenlistments.  In cases where the separating Soldier received a less than honorable 
character of service, the regulation required the addition of the following remark:  
"CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the 
DD Form 214) TO (date before commencement of current enlistment)."

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180013990

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