BOARD DATE: 10 September 2020 DOCKET NUMBER: AR20200003245 APPLICANT REQUESTS: in effect, upgrade of his under other than honorable conditions (UOTHC) discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Full Life case manager’s statement of support FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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: a. He is requesting adjustment of his discharge designation so he can qualify for Department of Veterans Affairs (VA) benefits. The Army waivered him and drafted him. He screwed up and they discharged him for the same reason they needed a waiver to draft him, marijuana. If he wasn’t fit to be in the Army in the first place, why did they let him in? b. Why did they want to make him a combat medic if he had a drug charge? He not got to do it because he kept going absent without leave (AWOL). He admits he made a mistake. Records have been changed for the same reason 20 years ago, but later on when he tried to get this changed through a law firm, he was told they couldn’t help him. c. He is confused as to why they waived him to draft him, after all his hijinks in the military, then discharged him for the same reason. He is not a traitor; he didn’t sell information to the enemy. He admits he made a mistake and regrets it. He was unable to submit evidence as many documents of his were lost during his eviction from an apartment. 3. The applicant was inducted into the Army of the United States on 29 August 1969. Information regarding any required waivers for induction based on prior drug convictions or otherwise are not in his available records for review. 4. A DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) shows the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 25 November 1969 for willfully disobeying a lawful order on 24 November 1969 to report to the Mess Hall for extra training. 5. Headquarters, Special Troops Summary Court-Martial Order Number 2, dated 12 February 1970, shows: a. The applicant was arraigned and tried before a summary court-martial where he was charged with and found guilty of the following: * absenting himself from his unit without authority and remaining so absent from 29 November 1969 until 12 January 1970 * absenting himself from his unit without authority and remaining so absent from 14 January 1970 until 26 January 1970 b. He was sentenced to confinement at hard labor for 1 month and forfeiture of 2/3 pay for 1 month. 6. A second DA Form 2627-1, shows he again accepted NJP under Article 15 of the UCMJ on 4 March 1970, for disobeying a lawful order on 3 March 1970 to report for detail duty in the supply room. 7. Headquarters, Troop Command Summary Court Martial Order Number 861, dated 5 June 1970, shows: a. The applicant was arraigned and tried before a summary court martial where he was charged with and found guilty of the following: * absenting himself from his unit without authority and remaining so absent from 25 March 1970 until 13 April 1970 * without authority, failing to go to his appointed place of duty on 26 April 1970 * absenting himself from his unit without authority and remaining so absent from 7 May 1970 until 12 May 1970 b. He was sentenced to confinement at hard labor for 30 days and forfeiture of $60.00 for 1 month. 8. A DA Form 19-32 (Military Police (MP) Report), shows the following: a. Item 6 (Complaint) shows possession of marijuana, wrongful possession of dangerous drugs, and deserter apprehended, Houston, TX. b. Item 8 (Details of Information or Complaint) shows the MP office was notified on 12 October 1970 that the applicant, AWOL as of 3 July 1970 and dropped from the rolls on 3 July 1970, was apprehended by civil authorities and confined in the Harris County Jail, Houston, TX, pending disposition of civil charges. On 14 December 1970, the applicant appeared in District Court and received 10 years’ probation on his first charge, 120 days’ confinement, and $42.00 charges c. On 18 December 1970, the applicant was transported and released to the Special Processing Detachment, Fort Hood, TX. 9. The applicant made an undated statement to the Special Processing Detachment, Fort Hood, TX, stating he did not intend to appeal the conviction and sentence of 10 years’ probation as imposed by the 179th District Court of Harris County, TX on 14 December 1970, for the offense of possession of marijuana. 10. On 7 January 1971, the applicant was notified by his immediate commander of his intention to separate him under the provisions of Army Regulation 635-206 (Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), paragraph 6a, due to civil conviction, possession of marijuana with a sentence to 10 years’ probation. He was advised of his right to present his case before a board of officers, submit statements in his behalf, and be represented by military Counsel at no expense. 11. On 7 January 1971, the applicant acknowledged having been advised by Counsel of the basis for the contemplated action to accomplish his separation for civil conviction. He waived consideration of his case before a board of officers and waived representation by Counsel. He did not submit statements in his own behalf and understood he may expect to encounter substantial prejudice in civilian life and be ineligible for many or all benefits as a veteran if he were issued an undesirable discharge. 12. A Psychiatric Evaluation Certificate, dated 11 January 1971 shows: a. The applicant underwent psychiatric evaluation on 7 January 1971 pursuant to administrative discharge under Army Regulation 635-206. Direct examination and review of his past history revealed no indication of psychiatric disorder that would prevent administrative action. b. There were no disqualifying mental defects sufficient to warrant his disposition through medical channels. The applicant met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness). c. The applicant was deemed mentally responsible, able to distinguish right from wrong, and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. His separation was recommended as he showed no potential for rehabilitation or retention in a military setting. 13. A Medical Statement, dated 14 January 1971, shows a complete review of physical and mental examinations failed to reveal any defects which would have contributed to the applicant’s misconduct. According to Army Regulation 40-501, he was physically and mentally fit for duty without physical profile limitation. 14. On 2 February 1971, the applicant’s immediate commander recommended his undesirable discharge under the provisions of Army Regulation 635-206 and on 3 February 1971, his battalion commander recommended approval of the request for undesirable discharge. On 10 February 1971, the Staff Judge Advocate also recommended approval of the applicant’s undesirable discharge under the provisions of Army Regulation 635-206, due to conviction by civil court. 15. The applicant’s records contain a synopsis of an interview conducted with the applicant by Counsel on 7 January 1971, wherein the applicant stated he did not complete his advanced individual training due felony conviction of possession of narcotics in Houston, TX. He stated he did not desire another opportunity to earn an honorable discharge. He was advised of his rights and stated he understood them and voluntarily chose to waive them. 16. On an unspecified date, the Commanding General, III Corps and Fort Hood approved the recommendation for undesirable discharge under the provisions of Army Regulation 635-206. 17. The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was discharged UOTHC on 1 March 1971, after 5 months and 12 days of net active service under the provisions of Army Regulation 635-206, due to misconduct, conviction by a civil court during current term of active military service. 18. The applicant provided a letter of support, dated 7 October 2019, from a case manager at Full Life, Foundational Community Supports. It states: a. The applicant would be very grateful for an opportunity to receive approval of cash benefits from the VA. He spends most of his waking hours in isolation as he has limited mobility and suffers from chronic pain. b. The only plans he has articulated to the case manager are to spend his “final days” in a subsidized apartment that he rents through Low Income Housing Institute of Seattle. Any additional income would allow him to increase his participation in the community and broaden his relational network. 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 found the letter of support he provided insufficiently mitigating 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 : 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-206 (Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), in effect at the time, provided for the administrative separation or retention of enlisted personnel who have committed an act of misconduct, to include unauthorized absence. a. Discharge for conviction by civil court may be ordered when a Soldier has been convicted by civil authorities or action taken against him which is tantamount to a finding of guilty, of an offense which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year. b. When an individual is discharged under this section for conviction by civil court, an undesirable discharge will normally be given, unless the particular circumstances of the case warrant an honorable or general discharge. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200003245 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1