IN THE CASE OF: BOARD DATE: 7 September 2022 DOCKET NUMBER: AR20220001133 APPLICANT’S REQUEST: an upgrade of his bad conduct discharge. 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) 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, since he has been out of the Army he has stopped drinking, smoking, and abusing drugs; he can now see things clearly, and he does not take anything for granted. 3. A review of the applicant’s service record shows: a. On 27 June 1977, the applicant enlisted into the Regular Army for 3 years; he was 19 years old. Upon completion of initial entry training and the award of military occupational specialty (MOS) 11D (Armored Reconnaissance Specialist; later changed to 19D, Cavalry Scout), orders assigned the applicant to Germany, and he arrived at his unit (an infantry battalion), on 12 October 1977. b. On 30 October 1978, the applicant battalion commander awarded him a Certificate of Achievement for the applicant’s outstanding duty performance on the West German Demarcation Line. Effective 1 November 1978, the applicant’s leadership promoted him to specialist four (SP4)/E-4. c. On 4 April 1979, the applicant completed his tour in Germany, and orders reassigned him to Fort Gordon, GA, where he served as a Personnel Records Specialist. On 4 June 1980, he immediately reenlisted for 4 years. On 18 June 1980, Permanent Orders (PO) awarded the applicant the Army Good Conduct Medal (1st Award). d. At some point prior to June 1981, the applicant received permanent change of station orders for Germany; on 25 June 1981, the applicant extended his enlistment by 3 months so he would have sufficient service remaining to complete his overseas tour. Effective 1 August 1991, orders promoted the applicant to sergeant (SGT)/E-5. e. On 4 August 1981, the Chief of the Military Personnel Office (MILPO) at Fort Gordon awarded the applicant a letter of commendation, due to the applicant’s pending reassignment. The Chief of the MILPO wrote, “During the months we have worked together, you have never failed to exhibit a positive attitude in accomplishing your assigned tasks.” f. On 26 August 1981, the applicant arrived at his new unit, in Germany (an infantry battalion). On 30 September 1981, PO awarded the applicant an Army Achievement Medal for his meritorious service at Fort Gordon, during the period 15 June 1979 to 4 August 1981; the award citation noted that, despite not working in his primary MOS, the applicant’s organizational skills and leadership enabled him to successfully supervise the Enlisted Records Bank, a sensitive position requiring the control and accountability of 6,000 military personnel records. In addition, the applicant significantly contributed to his organization’s success during major inspections. g. On 2 August 1983, PO awarded the applicant the Army Good Conduct Medal (2nd Award). On 21 October 1983, the applicant successfully completed Primary Leadership Development Course, and, on 16 December 1983, the applicant graduated from Basic Noncommissioned Officer (NCO) Course. On 7 June 1984, the applicant immediately reenlisted for 6 years; as a reenlistment option, the applicant selected reassignment to Fort Stewart, GA. The applicant subsequently received reassignment instructions, and, on or about 24 September 1984, the applicant arrived at Fort Stewart and was further assigned to a cavalry squadron. h. On 11 April 1985, the acting Commanding General, 24th Infantry Division (Mechanized) and Fort Stewart, issued the applicant a general officer memorandum of reprimand (GOMOR) after receiving a report that, in January 1985, the applicant had tested positive for marijuana. (1) On 14 May 1985, the applicant submitted his rebuttal. The applicant described the events prior to providing his urine sample, noting that when the unit called the 100 percent urinalysis formation, he had had to escort a Soldier to civilian court; he and the Soldier returned hours later. When he provided his urine specimen, the NCO simply placed it on the desk with other bottles. Following his return from the National Training Center, the commander informed the applicant of the positive urinalysis, and the applicant immediately demanded a retest; those results came back negative. He concluded, “the only thing that I am trying to say is that my career has been put on the line for something I know is incorrect. I’m not on or using drugs.” (2) The applicant’s Troop Commander provided input on whether the applicant’s GOMOR should be filed locally or in the applicant’s official military personnel file (OMPF). The commander observed that the applicant was an average NCO and, although the applicant had not received any other judicial or other action in the past, he was a marginal performer who displayed little leadership skill or initiative. When confronted with the positive urinalysis results, the applicant had adamantly declared his innocence; however, in the commander’s opinion, “[applicant] does not deserve to remain in the United States Army. I am initiating action to administratively discharge him from the United States Army under the provisions of Chapter 14 (Separation for Misconduct), Section III (Acts or Patterns of Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).” “In view of [applicant’s] past performance and this blatant act of misconduct, I recommend that his letter be filed in his OMPF.” (3) In June 1985, the Commanding General, 24th Infantry Division (Mechanized) and Fort Stewart, directed the GOMOR’s placement in the applicant’s OMPF. i. On or about 30 August 1985, intra-post orders transferred the applicant to another cavalry squadron on Fort Stewart. In or around October or November 1986, the applicant received orders for Korea, and he arrived in Korea, on 5 January 1987; orders subsequently further assigned him to an infantry battalion within the 2nd Infantry Division. j. Upon completion of a 12-month tour, permanent change of station orders transferred the applicant to Fort Lewis, WA, and he arrived his unit, a cavalry troop, on 10 February 1988. PO, dated 19 February 1988, awarded the applicant the Army Good Conduct Medal (3rd Award). k. On 7 October 1988, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for using cocaine, at some point between 31 August and 9 September 1988; the imposing official (the applicant’s squadron commander) reduced the applicant to SP4 but directed the suspension of a forfeiture of $519 per month for 2 months and 45-days’ extra duty and restriction. l. On 14 October 1988, the Department of the Army (DA) issued the applicant a DA- imposed bar to reenlistment, under the Qualitative Management Program (QMP). On 4 November 1988, the applicant’s squadron commander counseled him about the DA bar to reenlistment and explained the applicant’s options; the applicant requested discharge, on 15 January 1989. m. On 10 January 1989, the applicant’s squadron commander vacated the earlier- suspended NJP punishments (forfeiture, extra duty, and restriction) because the applicant had wrongfully used cocaine, between 11 and 21 November 1988. n. On 7 March 1989, consistent with the applicant’s pleas, a special court-martial, empowered to adjudge a bad conduct discharge, convicted the applicant of UCMJ violations. (1) The court found the applicant guilty of the following: (a) Article 112a (Wrongful Use of Cocaine), two specifications – In that the applicant used cocaine between 11 and 21 November 1988, and again, between 30 November and 9 December 1988. (b) Article 123a (Wrongfully Delivering Checks for currency or an Item of Value, With the Intent to Deceive and Knowing the Bank did not have Sufficient Funds), two specifications, which listed a total of 37 checks the applicant had written between November and December 1988 and ranging in amounts from $6.79 to $40.00; the checks were respectively issued to the Main NCO Club and a Mr. F__ M__. (c) Article 121 (Larceny of Currency), one specification – In that the applicant stole $60.37 in currency from the J.C. Penney Company in February 1989. (2) The court sentenced the applicant to 4-months’ confinement, forfeiture of $446 per months for 4 months, reduction to private (PV1)/E-1, and a bad conduct discharge; the court immediately remanded the applicant to confinement. On 23 March 1989, orders transferred the applicant to the U.S. Army Correctional Activity (USACA) at Fort Riley, KS. (3) On 14 April 1989, the court-martial convening authority approved the sentence and, except for the bad conduct discharge, directed its execution. o. On 24 May 1989, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence in the applicant’s case. p. On 16 June 1989, the applicant completed his confinement sentence, and USACA placed him on indefinite excess leave. On 6 September 1989, a special court- martial order announced the completion of the applicant’s appellate review process and directed the execution of his bad conduct discharge. On 15 September 1989, orders discharged the applicant accordingly. The applicant’s DD Form 214 shows the following: (1) Item 12 (Record of Service): * Item 12a (Date Entered AD (active duty) This Period) – 84/06/07 * Item 12b (Separation Date This Period) – 89/09/15 * Item 12c (Net Active Duty This Period) – 04/11/28 * Item 12d (Total Prior Active-Duty Service) – 06/11/10 * Item 12f (Foreign Service) – 01/02/11 (2) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * Army Service Ribbon * Overseas Service Ribbon with Numeral “3” * NCO Professional Development Ribbon with Numeral “2” * Army Achievement Medal (1st Award) * Three marksmanship qualification badges (3) Item 18 (Remarks): The applicant’s continuous honorable service, from 19770627 through 19840606 is not listed. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The law does not authorize the Board to set aside a conviction but only empowers it to change the severity of the sentence imposed in the court-martial process. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 6. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 7. By regulation AR 600-8-22 (Military Awards), currently in effect, states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for 30 consecutive or for 60 nonconsecutive days. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 8. AR 635-8 (Separation Processing and Documents), currently in effect, states for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter "CONTINUOUS HONORABLE SERVICE FROM" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. ABCMR 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. The Board noted, the applicant no provided post-service achievements or character letters of support to weigh 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 and denied relief. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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): 1. AR 635-5 (Separation Documents), effective 1 October 1979, ended the requirement to issue a DD Form 214 each time a Soldier reenlisted; instead, the regulation instructed DD Form 214 preparers to enter the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued. Additionally, the regulation required item 12f to reflect the total amount of foreign service completed during the DD Form 214’s term, and item 13 was to list all authorized awards and decorations. a. The applicant first entered active duty, on 27 June 1977. When he reenlisted, on 4 June 1980, the above-cited version of AR 635-5 was in effect; as such, he did not receive a DD Form 214. The applicant reenlisted again, on 7 June 1984, which is listed in error, on his DD Form 214, ending 15 September 1989, as the date he entered active duty. b. A correct reflection of the applicant dates of active-duty service is listed below: Date Years Months Days Equivalent Days 19770627-19890915 (no lost time) 12 2 20 4,464 Lost Time due to Confinement 101 4464-101 = 4363 19770627-19890915, adjusted for 101 days lost time 11 11 11 4363 c. The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) reflects the following overseas service: Location Start Finish Years Months Days Germany 19771009 19790411 1 6 3 Germany 19810826 19840814 2 11 20 Korea 19870105 19880108 1 4 Total 5 5 27 d. PO awarded the applicant the Army Good Conduct Medal (3rd Award). 2. Based on the foregoing, amend the applicant’s DD Form 214, ending 15 September 1989, as follows: a. Item 12 – delete current entries and replace with the following: * Item 12a (Date Entered AD (active duty) This Period) – 77/06/27 * Item 12b (Separation Date This Period) – 89/09/15 * Item 12c (Net Active Duty This Period) – 11/11/11 * Item 12d (Total Prior Active-Duty Service) – 0/0/0 * Item 12f (Foreign Service) – 05/05/27 b. Item 13 – add Army Good Conduct Medal (3rd Award) and Korea Defense Service Medal. c. Item 18 – Add the following comment: CONTINUOUS HONORABLE SERVICE FROM 19770627-19840606. “ REFERENCES: 1. Title 10, USC, section 1552(b), provides that: a. 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. b. With respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, corrections of any military records of the Secretary's Department may extend only to those 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, in effect at the time, prescribed policies and procedures for enlisted administrative separations. 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. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. 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, separation authorities could issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-11 (DD Form 259A (Bad Conduct Discharge Certificate) stated a Soldier could only receive a bad conduct discharge pursuant to the approved sentence of a general or special court-martial, and then only after proper authority had ordered the discharge's execution following the completion of an appellate review. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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, 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. 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//