IN THE CASE OF: BOARD DATE: 3 September 2020 DOCKET NUMBER: AR20200000979 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20180016205 on 15 April 2019. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * a five-page request for reconsideration FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20180016205 on 15 April 2019. 2. The applicant states: a. The prior decisional document was lacking in the review process and did not mention the overwhelming lack of the explanations for his conduct, or the all-important explanations of the circumstances that had a profound impact and ultimate bearing on the decision not to grant him a general discharge. b. His affidavit-memorandum should be recognized as extenuating evidence that led to his actions during his time in the Army, as well are the failures of his counsel that should have an impact on the decisions. · c. He recognizes that his memorandum is self-serving and states he is aware that a defendant's declarations should not be discounted simply because they are self-serving. (U.S. v. Sawyer, Case No. 15-2508 (7th Cir. 2017) (October) WL4700089). d. His counsel failed to conduct meaningful pretrial discovery, constituting ineffective assistance. The record should have reflected that the cause for his nonjudicial punishments (NJPs) of 4 June 1973, 13 September 1973, and 3 January 1974, was because of his inability to report to his place of duty due to the fact he was incapacitated due to drugs. Had counsel made the facts part of the record, it would have brought light to the extent of his problems and the obvious need for help. (Pilchak v. Camper, 741 F. Supp. 782 (WD MO 1990)). e. His counsel failed to file a pretrial motion to suppress evidence and failed to subpoena his alibi witnesses as requested. His counsel did not consult with him or listen to his version of supportable facts. At the hearing, counsel told the judge it would be in the best interest of the Army to release him from the Army and retain the information from a well-placed informant to remain suppressed. There was a clear conflict of interest where he was concerned. (Application of Tomich, 221 F. Supp. 500 (D Mcint. L63 Affd. at 332 F. 2d 987 (9th Cir.)). f. His counsel failed to put an "Agreement in Writing" or on the record in the presence of the judge. His counsel' s theme throughout was to assure him that, if he followed his advice, he would receive a general discharge, if he would only make the statement in open court that he just wanted it to end. (Houston v. Lockhart, 982 F. 2d 1246 (8th Cir. 1964)). g. Taking into account this time was during the Vietnam Era, most of his decisions were fueled by his drug addictions and influenced with the impending problem of what to do where his life was concerned. h. The weight of his decisions was influenced and bombarded with the fear being promoted by the Veterans returning with physical and psychological wounds, compounded by his counsel's relentless coercive advice to "just tell the court you want out and the case will be closed and you will get a general discharge." Emotionally, he was just seeking immediate relief, amplified by his drug addiction that had an unrelenting hold on him. i. Another motivating factor compounding his decision was his fear that his counsel assured him that if he went to trial he would be found guilty and he would go straight to Manheim Prison. He believes that the fear his counsel was peddling was to minimize counsel's work on his behalf, this being another conflict of interest issue, and screams of injustice against him. Counsel's efforts should have been the opposite and he should have looked out for the applicant. Surely he was not the only Veteran having these issues during this time. j. The Army was fully aware of his drug problem. As historical data will support, he had 14 dirty urinalyses, which led the Army to place him in drug rehabilitation and later to dismiss him as a lost cause. This is and was the Army's failure to take care of him. The Army and the Department of Veterans Affairs (VA) had the responsibility to take care of its Veterans. He enlisted in the Army, and by this action, at a minimum demonstrated his commitment to his country and the Army, which should have weight and be taken into account. k. Addressing the matter of why he did not file in a timely matter, his response is he was incarcerated on 8 April 1975, and was sent to the Federal Correctional Institution (FCI) in Terre Haute, IN on 14 July 1976. He was unaware of the method in which to request for change in his discharge status until 24 October 2018. (RE: 310 File 565046147 Notified by the Veterans Administration letter, Intake Center, Janesville WI. 53547-4444.) l. These reasons and statements clearly demonstrate the existence of probable error and injustice as to why the decision to deny his request for general discharge should be reconsidered. 3. Army Regulation 15-185 currently states a request for a reconsideration will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The applicant's contention that he had ineffective counsel and his citations of civil court evidentiary rulings constitutes new argument. 4. The applicant enlisted in the Regular Army on 29 February 1972. 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 4 June 1973, for disobeying a lawful order, on or about 1 June 1973, and for failing to go at the time prescribed to his appointed place of duty, on or about 3 June 1973 * on 13 September 1973, for failing to go at the time prescribed to his appointed place of duty, on or about 3 September 1973 * on 3 January 1974, for failing to go at the time prescribed to his appointed place of duty, on or about 5 December 1973 and 7 December 1973 6. A Memorandum for Record (MFR) from the Adjutant of the 3rd Battalion, 61st Air Defense Artillery Regiment, Third Armored Division, dated 24 May 1974, notes their headquarters received word that a Chapter 13 port call had been issued for the applicant. At approximately 1530 hours, 22 May 1974, a call was received from the 2nd Brigade Criminal Investigation Department (CID) that the applicant was being charged by CID with two separate charges of trafficking narcotics. It was decided, with the concurrence of the battery commander and the Staff Judge Advocate General's office, to bring court-martial charges the applicant and to cancel the port call. 7. Court-martial charges were preferred against the applicant on 29 May 1974 for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with wrongfully possessing and selling a control substance (Mandrax) [methaqualone], on or about 25 April 1974 and wrongfully possessing and selling a control substance (heroin), on or about 16 May 1974. 8. The applicant consulted with legal counsel on or about 26 June 1974. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. It is not clear if he elected to submit a statement in his own behalf. 9. The Office of the Staff Judge Advocate submitted a memorandum to the Commander, 3rd Armored Division, on 5 August 1974, in reference to the acceptance of the applicant's request for discharge. It was stated that originally, the applicant's battery commander, battalion commander, and brigade commander recommended that his application for a Chapter 10 discharge be disapproved. Because a court-martial would expose a very reliable CID informer, the commanders had changed their recommendations to one of approval of the request for discharge for the good of the service, with the recommendation that the applicant receive a DD Form 258A (Undesirable Discharge Certificate). 10. The separation authority approved the applicant's request for discharge on 5 August 1974, under the provisions of Army Regulation 635-200, Chapter 10, and directed the applicant be reduced to the lowest enlisted grade and that he be issued an Undesirable Discharge Certificate. 11. The applicant was discharged on 19 August 1974, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged in the lowest enlisted grade, his service was characterized as UOTHC, and he was issued an Undesirable Discharge Certificate. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 14. The ABCMR denied the applicant's request for an upgrade on 17 July 2019. 15. The Board should again consider the applicant's statements in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no 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 . BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20180016205, dated 15 April 2019. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. 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) AR20200000979 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000979 7 ABCMR Record of Proceedings (cont) AR20200000979 6