ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 August 2020 DOCKET NUMBER: AR20190013408 APPLICANT REQUESTS: an upgrade of his character of service from a bad conduct (BCD) discharge to an under honorable conditions (general) or honorable characterization of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * U.S. Air National Guard Honorable Discharge Documentation issued 29 March 1976 * eight (8) Letters of Commendation - dated 27 August 1976, 1 December 1976, 10 August 1977, 30 January 1979, 20 February 1979, 9 May 1979, 6 June 1984, undated * three (3) Certificates of Appreciation - dated 8 February 1977, 5 June 1980, 28 April 2006 * Certificate of Achievement issued 30 January 1978 * three (3) Certificates of Training - dated 16 December 1977, 19 August 1981, 12 July 1983 * three (3) Memoranda of Appreciation - dated 30 March 1979, 20 December 1977, 23 March 1978 * two (2) Certificates of Recognition issued 1 March 1979, 20 April 1979 * Permanent Orders for Good Conduct Medal issued 9 March 1979 * U.S. Army Honorable Discharge Documentation issued 30 October 1979 * Special Merit Citation issued 1979 * U.S. Transportation School Diploma issued 27 November 1981 * Permanent Orders for Aircraft Crewman Badge issued 18 February 1982 * Permanent Orders for Good Conduct Medal issued 19 July 1982 * U.S. Army Honorable Discharge Documentation issued 27 October 1982 * Certification of Military service issued 27 October 1982 * two Records of Informal Counseling Session dated 25 January 1984 and 29 March 1984 * DA 2166-6 (Enlisted Evaluation Report) for ending period March 1984 * Noncommissioned Officer Academy Certificate of Graduation issued 18 May 1984 * Central Texas College Certificate issued 18 January 1985 * Correspondence Course Completion Notice dated 26 January 1985 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for ending period 30 April 1986 * seven (7) Civilian Certificate of Appreciation dated - 28 July 1987, 23 June 1988, 28 April 1996, August 1996, 28 April 2001, 28 April 2011, undated * Individual or Team Nomination for Employee Recognition Program document dated 23 July 1996 * Certificate of Recognition issued 20 March 2000 * Certificate of Completion issued 15 December 2001 * Membership Certificate issued 21 December 2001 * Certificate of Baptism issued 21 April 2002 * College Diploma issued 25 October 2002 * College Course Transcripts for - Fall 2004, Spring 2005, and Fall 2005 * Employee of the Month issued July 2005 * Civilian Team of the Month Certificate issued 23 February 2006 * Certificate of Ordination issued 4 June 2006 * California State University, Long Beach College program completion certificate issued 29 June 2006 * Boeing/CSULB Manufacturing Engineering Program Graduation brochure dated 29 June 2006 * two (2) Superior Court of California, County of Orange Record Search information dated 16 October 2007 and 22 October 2007 * Credentials of Ministry certificate issued 6 November 2007 * Letter from Pastor dated 2 February 2009 * Church letter of good standing dated 1 December 2017 * American Legion Certificate of Nomination undated * Applicant’s resume undated * Counseling checklist * Civilian Employee Involvement High Performance Team Award Certificate * College Course enrollment form undated * Certificate of Christian Ordination undated * Various pictures of the applicant on or near aircraft 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 that his conduct and ratings were mostly good during his career. He received many awards, letters of commendation, and he even received an honorable discharge before his last reenlistment. The applicant has been a good citizen since his discharge and would like the Board to grant and upgrade to his character of service. 3. After previous enlisted service in the Air National Guard as a cook, the applicant enlisted in the Regular Army on 30 March 1976 and was awarded military occupational specialties 68G (Aircraft Structure Repairman) and 94E (Food Service Specialist). The applicant completed a series of reenlistments while in the Regular Army and remained on active duty in the Regular Army until his discharge in 1986. 4. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 8 January 1985, shows, a flag was initiated on 8 January 1985 due to Court-Martial Action. 5. On 29 April 1985, the applicant was arraigned and tried during a general court- martial on the offenses of violation of Article 112a (Wrongful use and or possession of controlled substance(s) when on or about 3 January 1985, the applicant wrongfully possessed about .599 grams of cocaine, a schedule II controlled substance. He was found guilty of the charge. In addition, the applicant violated Article 80 (Attempts) when on or about 3 January 1985, the applicant attempted to prevent seizure of the .599 grams of cocaine by attempting to hide the cocaine in his mouth when a person authorized to make searches and seizures tried to seize the cocaine from the applicant’s possession. The applicant was found guilty. 6. On 13 June 1985, the presiding military judge adjudged the sentence of reduction to the lowest grade, forfeiture of all pay and allowances, discharge from the U.S. Army with a bad conduct discharge and confined the applicant for a period of 9 months. 7. A DA Form 4430-R (Report of Result of Trial) shows the applicant pleaded guilty to the charges of Article 112a and Article 80. 8. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 17 June 1985, shows flag initiated on 8 January 1985 due to Court-Martial Action was transferred to the Commander, USA Correctional Facility at Fort Riley, KS. 9. Orders 171-162, dated 20 June 1985 shows the applicant was reassigned to U.S. Army Correctional Activity, Fort Riley KS. 10. A DA Form 4187 (Personnel Action) dated 19 July 1985 shows the applicant’s duty status changed from present for duty (PDY) to confined military authorities on 13 June 1985 as adjudged by court-martial proceedings. 11. General Court-Martial Order Number, issued by Headquarters, 1st Armored Division, New York, dated 20 September 1985 before a general court-martial shows the applicant was found guilty in violation of Article 112a (Wrongful use and or possession of controlled substance (s). On or about 3 January 1985, the applicant arrived Frankfurt International Airport and wrongfully possessed about .599 grams of cocaine, a schedule II controlled substance. In addition, the applicant violated Article 80 (Attempts) when the applicant attempted to prevent seizure by removing foil containing about .599 grams of cocaine from his pocket of his pants and put it in his mouth; property which he then knew a person authorized to make searches and seizures was about to seize. The court sentenced the applicant to 9 months of confinement, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and the issuance of a BCD discharge. His sentence was adjudged on 13 June 1985. The convening authority approved the findings on 20 September 1985. 12. A DA Form 4187 dated 17 January 1986 shows the applicant’s duty status changed from confined military authority to PDY on 17 January 1986. 13. On 17 January 1986, the applicant’s chain of command placed him placed on involuntary excessive leave status that kept the applicant on active duty to complete the separation procedures against him. The applicant’s chain of command had previously informed him of the potential for the action and he voluntarily consented to be placed on involuntary excess leave and stated he would provide statements on his behalf. The statements the applicant provided at the time were not found in his records. 14. A Medical Examination for Separation - Statement of Option, dated 10 January 1986, shows that the applicant understood that he was not required to undergo a medical examination for separation from active duty. He further understood that if he elected not to undergo a separation exam, a physician at the appropriate medical treatment facility would review his medical records, and if the review indicated that an examination should be accomplished, he would be scheduled for an examination based on the results of the review. The applicant also reviewed a Medical Examination for Separation document showing that his medical records were screened. His medical records indicated that the applicant had previously taken a physical examination on 10 January 1986 and results were pending. 15. A DA Form 3822-R (Report of Mental Status Evaluation), shows the Division Mental Health, as a command referral, evaluated the applicant because he was being considered/pending a discharge. There was no evidence of a mental disease or defect of any psychiatric significance that would have caused him to be considered for further psychiatric evaluation. 16. The applicant’s records also contain a Standard Form 93 (Report of Medical History) and a Standard Form 88 (Report of Medical Examination) on 10 January 1986. The physician determined the applicant was qualified for separation from the U.S. Army. 17. The applicant appealed the outcome of his court-marital case with the U.S. Army Court of Military Review. The Court upheld his convictions and denied his appeal on 26 February 1986. 18. General Court-Marital Order 287, dated 17 April 1986 shows that military law and procedure were followed to include the provisions of Article 71c and the applicant was sentenced to 9 months of confinement, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and the issuance of a BCD discharge. In addition, General Court-Marital Order 287 shows that General Court-Marital Order 89 had been affirmed, the applicant’s sentencing had been served, and stated the applicant’s BCD would be executed. 19. The applicant was discharged on 30 April 1986, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge. The DD Form 214 he was issued shows he was credited with 6 years, 10 months, and 28 days of net active service, and his service was characterized as BCD. 20. The applicant included numerous documents in support of his application, which are located in the attached supporting documents file for the Boards review. These documents include favorable recognition in the forms of letters and certificates of recognition during the period of his service, as well as favorable evaluation. These documents further extend into his post service achievements and accomplishments and outline his education, ministerial achievements, and letters. 21. There was no evidence found that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 22. The Board should consider the evidence the applicant provided and 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 that there is sufficient evidence to grant relief and upgrade the applicant’s discharge to General, Under Honorable Conditions. 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 found the statement and evidence of honorable post-service achievements to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s post-service achievements have partially mitigated the misconduct resulting in the discharge characterization. The Board agreed that a General, Under Honorable Conditions discharge is warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending “30 April 1986” showing his characterization of service as “General, Under Honorable Conditions.” 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. AR 635-200, in effect at the time, set policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly separation of enlisted members for a variety of reasons. a. This regulation states 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. b. This regulation states 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. c. The regulation also provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered 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. //Nothing Follows// ABCMR Record of Proceedings (cont) AR20190013408 6 1