ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20190005452


APPLICANT REQUESTS:   The applicant requests an upgrade of his dishonorable 
discharge so that he may be eligible for Department of Veterans Affairs (VA) benefits.

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) 
*	VA Statement in Support of Claim
*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States) 

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, in effect, he is submitting an application to this Board because 
he cannot receive Medicaid until he can show the State of he is ineligible for VA 
benefits.  Additionally, he states, in effect:

     a.  He really needs Medicaid and the State of trying to make it as difficult as possible 
for him to get it by bringing up his military history.
 
      b.  He does not believe his record to be in error, there is no discrepancy in his case.  
He made a mistake when he was age 22 and he has spent the last 35 years trying to 
deal with the mistake.  Three of the four and a half grams of cocaine [he had] were lost.  
At first he was told that he could get 45 years, then 16 years, and finally he was offered 
a 2 year plea agreement.  He served 19 months of his 24 month sentence at hard labor.

3.  On 6 August 1980, at age 18, he enlisted in the Regular Army for 3 years.  He 
completed his training and he was awarded military occupational specialty (MOS) 31K 
(Combat Signaler).  The highest rank/grade he attained while serving on active duty 
was private first class/E-3.  On 2 December 1980, he was assigned to Fort Carson, CO, 
with duties in his MOS. 

4.  On 13 April 1983, the applicant received nonjudicial punishment (NJP) under the 
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for breaking quarters 
on 4 April 1983.

5.  The applicant left his unit in an absent without leave (AWOL) status on18 July 1983, 
he was dropped from Army rolls and was carried in a desertion status until he was 
returned to military control on 9 February 1984.  Eventually he was returned to Fort 
Carson and court-martial charges were filed against him for this period of AWOL.  

6.  His record contains a Report of Mental Status Evaluation, and a Report of Medical 
Examination, which cleared the applicant for administrative separation deemed 
appropriate by his commander. 

7.  On 29 February 1984, the applicant consulted with legal counsel and was advised of 
the basis for the contemplated trial by court-martial for an offense punishable by a bad 
conduct discharge or a dishonorable discharge, the maximum permissible punishment 
authorized under the UCMJ, the possible effects of a request for discharge, and of the 
procedures and rights that were available to him.  Following consultation with legal 
counsel, he requested discharge for the good of the service in lieu of trial by court-
martial in accordance with chapter 10, Army Regulation (AR) 635-200 (Personnel 
Separations-Enlisted Personnel).  He also acknowledged he understood that if the 
discharge request was approved, he could be deprived of many or all Army benefits, 
that he could be ineligible for many or all benefits administered by the VA, and that he 
could be deprived of his rights and benefits as a veteran under both Federal and State 
laws.  But, prior to the completion of this process, he was charged with a drug offense.

8.  General Court-Martial Order Number 32, issued by Headquarters, 4th Infantry 
Division (Mechanized), Fort Carson, confirms on 9 April 1984, the applicant pled guilty 
and he was found guilty of the following offenses: 

*	wrongfully distributing 1.102 grams more or less of cocaine
*	being AWOL from 18 July 1983 to 9 February 1984
*	he was sentenced to a forfeiture of all pay and allowances, confinement at hard 
labor for 2 years, reduction to the rank of private/E-1, and a dishonorable 
discharge 

9.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and 
the sentence. 

10.  Headquarters, U.S. Army Correctional Brigade, Fort Riley, Kansas, General Court-
Martial Order Number 436, dated 28 September 1984, shows that, after completion of 
all required post-trial and appellate reviews, the convening authority ordered the 
applicant’s dishonorable discharge executed. 

11.  The DD Form 214 that he was issued shows on 6 September 1985, he was 
discharged under the provisions of chapter 3, AR 635-200, as a result of court-martial 
with a dishonorable discharge.  He completed 2 years and 11 months of creditable 
active service with lost time from 18 July 1983 through 5 September 1985. 

12.  Chapter 3, AR 635-200, in effect at the time, stated a Soldier 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. 

13.  The applicant provides a Statement in Support of a VA Claim, in which he states, in 
effect, he was age 22, fell in with the wrong crowd, and became addicted to cocaine.  
He took responsibility for his actions, served his time, and he has been married for 
22 years.  He has been a law abiding citizen, put three kids through college, and worked 
for 34 years.  He has tried to be a productive member of society.  He states he does not 
expect the VA to overturn his discharge, he is making this claim so that he can prove he 
is not eligible for VA benefits and obtain Medicaid.

14.  His service record shows he was convicted by a general court-martialed of 
wrongfully distributing 1.102 grams more or less of cocaine and of being AWOL from 
18 July 1983 to 9 February 1984 and he was issued a dishonorable discharge.

15.  The applicant contends, in effect, he does not believe his record contains an error 
or discrepancy.  He needs Medicaid, therefore, he has to submit this application to 
prove to the State of Kansas he is ineligible for VA benefits.

16.  He completed 2 years and 11 months of his 3 year enlistment obligation.  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 guidance. 

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the record and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct and the reason for his separation.  
The Board found insufficient evidence of in-service mitigating factors for the applicant’s 
serious misconduct.  The Board considered the applicant’s statement of his post-service 
conduct, but found he did not provide additional evidence of post-service achievements 
or letters of reference in support of a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust. 

2. After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.
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 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.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  It 
provides: 

     a.  A Soldier 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. 

     b.  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. 

     c.  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.  

3.  Title 10 United States Code, section 1552 governs operations of the ABCMR.  
Section f of this provision of law essentially states the authority of the ABCMR only 
extends to correction of a record.  The ABCMR is not empowered to set aside a 
conviction, rather it is only empowered to change the severity of the sentence imposed 
in the court-martial process and then only if clemency is determined to be appropriate.  
Clemency is an act of mercy, or instance of leniency, to moderate the severity of the 
punishment imposed.

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 (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. 




ABCMR Record of Proceedings (cont)	 AR20190005452

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