ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 August 2020 DOCKET NUMBER: AR20200000656 APPLICANT REQUESTS: reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20130020503 on 31 July 2014. Specifically, he requests an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130020503 on 31 July 2014. 2. The applicant states he only had two marijuana cigarettes and was given the option of one-year in the stockade and reduction to private (PVT)/E-1 or take an "under-dishonorable discharge" which he did and got out of the Army. 3. The applicant enlisted in the Regular Army on 11 September 1972 at the age of 17. 4. The applicant's limited available record contains: a. Page 2 of DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), which shows he accepted non-judicial punishment (NJP) on 23 January 1974 for an unknown reason; however, it shows his punishment of forfeiture of $50 per month for one month, restriction for 14 days. b. Another DA Form 2627-1 that shows he accepted NJP, under the provisions of Article 15 of the UCMJ, on 27 March 1974 for leaving his post as a sentinel before being regularly relieved on or about 25 March 1974; violating a lawful written regulation on or about 25 March 1974; and wrongfully having in his possession an undetermined quantity of marihuana on or about 25 March 1974. His punishment was forfeiture of $160 per month for two months, and extra duty for 45 days. c. DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) shows he was charged and convicted of being absent without leave (AWOL) on or about 23 August 1973 through on or about 26 November 1973, a period of 96 days. His punishment was reduction to PV1/E-1, forfeiture of $216 pay for one month, and extra duty without confinement for 45 days. This sentence was adjudicated and approved on 6 December 1973. 5. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding the processing of his discharge. However, his record contains a DD Form 214 (Report of Separation from Active Duty), signed by the applicant, that identifies the authority and reason for his discharge. 6. The applicant was discharged on 18 April 1974. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13-5a (1) by reason of unfitness - frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions characterization of service. It further shows: * he was issued an Undesirable Discharge Certificate * he completed 1 year and 4 months of total active service * he had 98 days of lost time 7. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 sufficient evidence to amend the decision of the ABCMR set forth in Docket Number AR20130020503 on 31 July 2014. The Board found that 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 or letters of reference that might have mitigated the discharge characterization or support a clemency determination. Furthermore, the applicant stated that his only offense was related to marijuana use, but the record reflects two other instances of misconduct as well. Based on the preponderance of evidence presented, the Board agreed that the applicant’s discharge characterization is appropriate; the Board found no evidence of an error or injustice. 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 Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130020503 on 31 July 2014. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. X CHAIRPERSON 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. Army Regulation 15-185 (ABMCR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200, dated 15 July 1966 with changes, sets forth the basic authority and policies for the separation and voluntary retirement of enlisted personnel. a. 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. 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. Chapter 13 applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, and established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 3. 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//