IN THE CASE OF: BOARD DATE: 25 November 2020 DOCKET NUMBER: AR20200003050 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to fully honorable. 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 three year time frame provided in Title 10, United States 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 he was falsely accused of selling drugs and threatening an informant working for “SLED.” He was put into jail for 4 months and was offered an UOTHC discharge. However, he was never caught with drugs, court-martialed, nor went to trial. He recently had a stroke and was unable to enroll for Department of Veterans Affairs (VA) for healthcare. 3. He had honorable service in the Regular Army (RA) from 29 August 1978 to 3 March 1981. On 4 March 1981, he reenlisted in the RA for 3 years, in pay grade E-4, and he held military occupational specialty (MOS) 76Y (Unit Supply Specialist) and MOS 64C (Motor Transport Operator). On 29 June 1982, he was assigned to Germany. 4. On 1 April 1983, he was promoted to the rank of sergeant/E-5, this was the highest rank he held. 5. On 23 October 1984, the applicant was apprehended and advised of his rights which he waived and rendered an oral statement denying any involvement with the trafficking of cocaine. The investigation continued with USACIDC. 6. An U.S. Army Criminal Investigation Command (USACIDC) Report of Investigation Synopsis, dated 29 October 1984, shows the preliminary investigation disclosed the applicant was identified by numerous USACIDC registered sources (RS) as a trafficker of cocaine. Between 13 July and 1 August 1984, numerous attempts to effect a controlled purchase of cocaine were made, all of which met with negative results. During the investigation of CID ROI 0480-84-CID047-86134, the applicant was again identified as a suspect in the trafficking of cocaine. All of the information pertaining to the applicant’s drug related activity was presented to the Staff Judge Advocate’s Office who opined that there was sufficient probable cause to cite the applicant for the listed offenses. The final USACIDC Report is not contained in the available record. 7. A DA Form 458 (Charge Sheet), dated 9 November 1984, shows he was charged with the following offenses occurring outside the territorial limits of the United States and not being cognizable in a United States civilian court: a. Wrongfully distributing 8 grams more or less of cocaine, a schedule I controlled substance, between December 1983 and January 1984 at Kirch-Goens Federal Republic of Germany. b. Wrongfully using cocaine, a schedule I controlled substance at Butzbach and Kirch-Goens, Federal Republic of Germany, between December 1983 and January 1984. c. Wrongfully possessing five sandwich bags (each approximately 4" by 5" in size) half full of cocaine, a schedule I controlled substance with the intent to distribute at Wetzlar, Federal Republic of Germany, in February 1984. d. Wrongfully distributing 6 grams, more or less, of cocaine, a schedule I controlled substance, at Wetzlar, Federal Republic of Germany, in February 1984. e. Wrongfully soliciting “MPI” PTB to purchase and use marijuana, a schedule I controlled substance, by stating," I can get you as much marijuana as you want, 1/2 kilo, 1 kilo" by agreeing to provide two DM SO sticks of hashish as a sample and requesting that “MPI” PTB come to his residence and smoke his "personal piece" with him, at Kirch-Goens, Federal Republic of Germany, on or about 12 July 1984. 8. A DA Form 458, dated 22 December 1984, shows he was charged with wrongfully endeavoring to influence the testimony of Ms. CUM, a witness before a court-martial in the case of United States versus S________ by communicating to the witness a threat to harm her, on or about 20 December 1984, at Ayers Kaserne, Kirch-Goens, Federal Republic of Germany, if she testified at such trial. The offense occurring outside the territorial limits of the United States and not being cognizable in a United States civilian court. 9. The available evidence shows the applicant underwent an Article 32b Investigation that convened on 3 December 1984 and adjourned on 14 January 1985, the applicant had counsel. There is no evidence he testified or provided a statement. The company had been in the unit for about 90 days. The commander stated the applicant’s duty performance had been very good since he took command of the company. The applicant was a supply clerk. The commander knew of no trouble the applicant had been in prior to this. The commander stated he had no reason to doubt the truthfulness of the applicant. The commander knew of no other problems with the applicant's off- duty performance. The applicant had been called on during off-duty hours on numerous occasions to come in and he responded each time. The commander did not think there was a problem with cocaine in the unit. During the December 1983 and March 1984 time frame the applicant had not tested positive [for anything]. Various other testimonies were given by witnesses, confidential sources (CS) and RS concerning the applicant’s involvement with drugs. 10. On 25 February 1985, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. He signed a request for discharge for the good of the service and there is no evidence that he submitted statements in his own behalf. a. On 27 February 1985, the applicant's immediate commander and intermediate commanders recommended approval with an UOTHC discharge. b. On 8 March 1985, the appropriate authority approved the applicant’s request for discharge, directed reduction to the lowest enlisted grade, if serving in a higher grade, and the issuance of an UOTHC discharge. c. A Report of Medical Examination, dated 9 April 1985, shows as part of the discharge process, he was found qualified for separation. d. On 18 April 1985, he was discharged accordingly. He completed 6 years, 4 months, and 18 days of total active service. His DD Form 214 also shows in: * Foreign Service, 0002 09 20 * Decorations, Medals, Badges, Citations and Campaigns Ribbons Awarded or Authorized, the Army Service Ribbon, Army Achievement Medal, Good Conduct Medal, Expert Marksmanship Qualification Badge Rifle (M-16) * Character of Service, “Bad Conduct” * Separation Authority, AR 635-200, Chapter 10 * Narrative Reason for Separation, “For the Good of the Service In Lieu of Court-Martial” * Dates of Time Lost During This Period, 841227-850324 (87 days) 11. He is entitled to have his DD Form 214 corrected to show “CONTINUOUS HONORABLE ACTIVE SERVICE FROM “19780829 – 19810303” (29 August 1978 through 3 March 1981). 12. The applicant contends he was falsely accused of selling drugs and threatening an informant working for “SLED.” He was never caught with drugs, court-martialed, nor went to trial. He recently had a stroke and is unable to get VA healthcare. 13. The available evidence shows the applicant underwent a CID Investigation, and an Article 32b Investigation, and court-martial charges were filed against him for wrongfully distributing 8 grams more or less of cocaine; wrongfully possessing five sandwich bags of cocaine, with intent to distribute; wrongfully using cocaine; wrongfully distributing 6 grams, more or less, of cocaine; wrongfully soliciting an “MPI” to purchase and use marijuana; and for wrongfully endeavoring to influence the testimony of a witness before a court-martial. He voluntarily requested a discharge for the good of the service to avoid a possible felony conviction. As a result, he was issued an UOTHC discharge under the provisions of chapter 10. He completed 6 years, 4 months, and 18 days of active military service. He also had 87 days of lost time due to being in military confinement. 14. In regards to the applicant’s contention that he is unable to get VA benefits without an upgrade of his discharge. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, contentions, and his service record 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 multiple offenses of a criminal nature which led to the applicant’s separation, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. The Board did note, however, that the applicant had a prior period of honorable service which currently is not reflected on his DD Form 214 and recommended that change be completed to more accurately reflect the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XX :XX GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 29 August 1978 until 3 March 1981.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 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 Army Board for Correction of Military Records (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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an UOTHC discharge was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC discharge is an administrative separation from the service UOTHC. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. 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. 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// ABCMR Record of Proceedings (cont) AR20200003050 7 ABCMR Record of Proceedings (cont) AR20200003050 1