IN THE CASE OF: BOARD DATE: 25 November 2020 DOCKET NUMBER: AR20200002742 APPLICANT REQUESTS: * upgrade of his under honorable conditions discharge to honorable * full credit for time served APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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 he wants an honorable discharge and full credit for time served. He was charged with possession of .04 grams of marijuana. The possession was never proven because they had no evidence and no evidence was ever presented in court. He is a veteran of the Vietnam War and all of his ratings were excellent up until that time. He was bitter at the time he was discharged and felt like there was nothing he could do. He only recently discovered there was a formal process available for applying for correction of an injustice in his military record. 3. The applicant's record is void of his induction documents; however, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), shows he was inducted into the Army on 28 September 1966 at the age of 25 years old. He had zero foreign and/or sea service. 4. On 11 April 1967, the applicant accepted nonjudicial punishment (NJP) for two charges of failing to go to his appointed place of duty. His punishment was an oral reprimand, 10 days restriction, and forfeiture of $10 per month for one month. On 1 August 1967, the applicant accepted NJP for one charge of failing to perform his duties in a military manner by absenting himself from reveille formation. His punishment was 14 days extra duty. On 26 April 1968, he accepted NJP for absenting himself from reveille formation. His punishment was reduction to Private/E-2 and forfeiture of $10.00 per month for one month. 5. On 11 July 1968, the applicant was tried by General Court-Martial for one charge of wrongful possession of .04 grams, more or less, of marijuana. He pled to and was found guilty of the charge. His sentence was discharge from the Army with a bad- conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for two years, and reduction to the grade of Private/E-1. On 4 September 1968, the convening authority approved only so much of the sentence as provided for a bad- conduct discharge, forfeiture of all pay and allowances, and confinement for one year. 6. On 22 October 1968, the Board of Review affirmed the the finding of guilty and the sentence. On 5 December 1968, the sentence to a bad-conduct discharge, forfeiture of all pay and allowances and confinement for hard labor for one year was ordered duly executed. 7. The applicant's service records contains a voided DD Form 214, which shows the applicant was inducted into the Army on 28 September 1966 and was discharged on 6 January 1969 with an Under Conditions Other than Honorable discharge, under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) paragraph 11-1b. He had served 1 year, 9 months, and 4 days of net active duty service. He had zero foreign and/or sea service. He was not authorized any awards or decorations. He had 88 day lost from 2 July 1968 through 27 September 1968 and 101 days lost from 28 September 1968 through 6 January 1969. A voided bad-conduct discharge certificate was also present in his service record. 8. Special Orders Number 3, dated 6 January 1969 shows the applicant was discharged effective 6 January 1969 from the Correction Holding Detachment with an Under Other Than Honorable Conditions Discharge. 9. The applicant's service records contain a DD Form 214, which shows the applicant was inducted into the Army on 28 September 1966 and discharged on 6 January 1969 with an Under Honorable Conditions (General) discharge, under the provisions of Army Regulation 635-200 paragraph 11-1b. He had served 1 year, 9 months, and 4 days of net active duty service. He had zero foreign and/or sea service. He was not authorized any awards or decorations. The character of discharge was substituted by the Secretary of the Army for good cause. He had 88 days lost from 2 July 1968 through 27 September 1968 and 101 days lost from 28 September 1968 through 6 January 1969. 10. On 29 January 1969, a restoration action record was completed wherein the applicant was being considered for restoration on active duty upon completion of his confinement. The applicant was not recommended for restoration of active duty and his restoration was disapproved. 11. On 6 February 1969, a Clemency and Parole Action Record was completed. The applicant was not recommended for clemency, the unexecuted portion of his sentence was remitted and he was granted an under honorable conditions (general) discharge. On 24 February 1969 a letter from the Commandant, US Disciplinary Barracks states, restoration to duty for the applicant had been disapproved and he had received clemency by the remittance of the unexecuted portion of his sentence to confinement and substitution of an under honorable conditions (general) discharge in lieu of a bad- conduct discharge had been approved. 12. The applicant's DA Form 20 (Enlisted Qualification Record) did not show the applicant served in the Republic of Vietnam or that he had any foreign service. It does show he was awarded the National Defense Service Medal, which was not present on his DD Form 214 and that his conduct and efficiency were excellent and good. 13. The applicant states he wants his discharge upgraded because there was no evidence presented that he had possessed marijuana and he wanted to be credited for his time service. He is a veteran of the Vietnam War and all of his ratings were excellent up until the time of his court-martial. a. His records do not contain evidence that he served in Vietnam. His ratings for conduct and efficiency were excellent and good during his service. His DD Form 214 shows he had 88 days lost from 2 July 1968 through 27 September 1968 and 101 days lost from 28 September 1968 through 6 January 1969. There is no evidence in his record to show he was absent without leave from the Army for any extended period of time or that his records were not correct in the amount of lost time he received. b. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states, 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. c. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The Board is not empowered to set aside a conviction, but is only empowered to change the severity of the sentence imposed in the court-martial process. b. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and the supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. Based upon the short term of honorable service completed prior to the pattern of misconduct leading up to the applicant’s separation, as well as the previous clemency received through a previous discharge upgrade, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. Additionally, based upon the available documentation, the Board found no error relating to the applicant’s service credit. Therefore, the Board recommended that all requested relief be denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. Prior to closing the case, the Board did note the administrative note below from the analyst of record and recommended that change be completed to more accurately reflect the military service of the applicant. 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): A review of his record provides administrative error in annotating receipt of the National Defense Service Medal on his DD Form 214, as a result correct the DD Forms 214 to show he was awarded the National Defense Service Medal. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that 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 Army Board for Correction of Military Records (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. 2. Title 10, USC, section 1552(b), provides, with respect to courts-martial, and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice (UCMJ), action to correct any military record of the Secretary's Department may extend only to 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. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR), prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states, 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. 4. Army Regulation 635-200 (Enlisted Personnel - Personnel Separations), in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. A Soldier's service could be characterized as honorable if he/she received at least "Good" for conduct, and at least "Fair" for efficiency. In addition, the Soldier could not have one general court-martial or more than one special court-martial conviction. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 1-11b states, commanders of transfer activities will examine each enlisted qualification record of personnel undergoing transfer processing and will issue the type of discharge ordered by the discharge with the characterization determined by the appropriate officer. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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. 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. 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) AR20200002742 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1