ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008119


APPLICANT REQUESTS:  Her dishonorable discharge be upgraded to an under other 
than honorable conditions (UOTHC) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 18 March 2019

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); 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 she believes she was unjustly charged and unfairly 
represented.  It was her first offense and she was not provided a second chance, nor 
was she provided with the resources to amend her mistake.  She had never had any 
legal issues prior to the offense.  She is now a homeless female Veteran who is unable 
to access the bare minimum of care from the Department of Veterans Affairs (VA), due 
to the type of discharge she received.

3.  The applicant enlisted in the Regular Army on 22 January 1986.  

4.  General Court-Martial Order Number 16, issued by Headquarters, Fort Carson and 
4th Infantry Division (Mechanized), Fort Carson, Colorado on 9 February 1988, shows 
the applicant was tried before a general court-martial on or about 12 January 1988.  

	a.  Pursuant to her pleas, she was convicted of the following offenses:

*	wrongfully possessing 0.25 grams, more or less, of cocaine and wrongfully 
possessing some amount of marijuana, on or about 17 September 1987
*	wrongfully distributing 7-6 grams, more or less, of cocaine, on or about 
25 September 1987
*	conspiring with a civilian on or about 24 September 1987 to commit wrongful 
distribution of cocaine and in order to effect the object of conspiracy, did 
accompany another Soldier to the residence of a civilian to purchase cocaine, 
on or about 25 September 1987

	b.  Her sentence included her reduction in rank/grade to private/E-1, forfeiture of all 
pay and allowances, confinement for two years and six months, and separation from 
service with a dishonorable discharge.

	c.  The convening authority approved the sentence and, except for the portion of the 
sentence extending to a dishonorable discharge, ordered the sentence executed.  
However, the execution of that portion of the sentence adjudging confinement in excess 
of 22 months was suspended for 12 months, at which time, unless the suspension was 
sooner vacated, the suspended portion of the sentence was to be remitted without 
further action.

	d.  The record of trial was forwarded to the U.S. Army Court of Military Review for 
appellate review.

5.   The U.S. Army Court of Military Review affirmed the general court-martial findings 
and sentence on 31 March 1988.  There is no evidence that the applicant petitioned the 
U.S. Court of Military Appeals for a grant of review.

6.  General Court-Martial Order Number 756, issued by the U.S. Army Correctional 
Activity, Fort Riley, Kansas, on 6 November 1988, noted that the approved sentence 
had been finally affirmed and ordered the dishonorable discharge executed.

7.  The applicant was discharged on 22 November 1988.  Her DD Form 214 (Certificate 
of Release or Discharge from Active Duty) confirms she was discharged under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
Chapter 3.  Her DD Form 214 shows her narrative reason for separation was "as a 
result of court-martial."  She was discharged in the rank/grade of private/E-1 and her 
service was characterized as dishonorable.

8.  Any redress by this Board of the finality of a court-martial conviction is prohibited by 
law.  The Board is only empowered to change a discharge if clemency is determined to 
be appropriate to moderate the severity of the sentence imposed.

9.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.





BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The Board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity.  The applicant had limited creditable service, no wartime service 
and insufficient evidence of mitigating circumstances for the misconduct. Neither did the 
Board find sufficient evidence of post-service honorable conduct that might have 
mitigated the discharge characterization.  The Board agreed that the applicant’s 
discharge characterization is appropriate. 

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 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 sets forth the basic authority for the separation of enlisted 
personnel.  Paragraph 3-10 provides that 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 duly executed.

3.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process.  In accordance with Title 10, U.S. Code, Section 1552, the authority 
under which this Board acts, 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.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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 a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	a.  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, Boards 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.  

	b.  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.


ABCMR Record of Proceedings (cont)	 AR20190008119

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