ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE:  15 February 2019

                   DOCKET NUMBER:  AR20160013454


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for Army Discharge Review Board)
* DD Form 214 (Report of Separation from Active Duty), ending 2 February 1976

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto).  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 it has been well over 15 years since his discharge; he would like his character of service upgraded so he could qualify for benefits from the Department of Veterans Affairs.

3.  The applicant enlisted in the Regular Army on 29 December 1971.

4.  On 4 April 1975, a civilian court convicted the applicant for two counts of possessing marijuana, one count of possessing phencyclidine (PCP), and burglary; the court sentenced him to 3 years in state prison.  

5.  On 4 August 1975, the applicant wrote a letter to his supporting Judge Advocate General's office, in which he stated:

* after serving honorably for 3 years, he was convicted by a civil court and sentenced to 3 years in prison; he summarized his service in the Army
* while confined, his unit's adjutant brought a bar to reenlistment form and advised him his unit intended to separate him with an undesirable discharge; he requested legal counsel

6.  On 15 August 1975, after consulting with counsel, the applicant indicated his elections; he noted:

* his counsel had told him of his commander's intent to separate him under the provisions of Army Regulation (AR) 635-206 (Discharge – Misconduct (Fraudulent entry, conviction by civil court, and absence without leave or desertion)
* he requested consideration of his case by a board of officer and he requested representation by counsel
* he understood the implications of receiving either a general discharge under honorable conditions or an undesirable discharge under other than honorable conditions
* while he initially elected not to submit a statement in his own behalf, he later submitted a statement that essentially contended he became addicted to depressants while in Korea; on his return to the United States, he got addicted to morphine; he was no longer addicted and asked for a second chance 

7.  A board of officers convened on 11 November 1975; after a review of all available evidence, the board recommended an undesirable discharge.  The separation authority approved the board's recommendation on 15 January 1976.

8.  The applicant was discharged with an undesirable discharge under other than honorable conditions on 2 February 1976.  He was awarded or authorized the National Defense Service Medal, Armed Forces Expeditionary Medal, and two service stripes.

9.  The Board should consider the applicant's petition, the evidence of record and the published guidance on equity, injustice, and/or clemency provided by the Department of Defense.

BOARD DISCUSSION:

The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance.  The applicant was convicted by a civilian court for two counts of possessing marijuana, one count of possessing PCP, and burglary and subsequently sentenced to 3 years in state prison.  He was then discharged with an undesirable discharge under other than honorable conditions.  The Board found no evidence of an error or injustice, therefore the applicant’s request is denied.



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.

SIGNATURE:

						 					___________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.

ADMINISTRATIVE NOTE(S):

Not Applicable


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 (AR) 635-206, in effect at the time, provided administration separation guidance for enlisted personnel who had committed an act or acts of misconduct.  The regulation addressed cases where Soldiers had been convicted by a civil court for an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) is death or confinement in excess of 1 year.  An Undesirable Discharge Certificate was typically issued to Soldiers discharged under this provision.

3.  AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, stated:

	a.  Paragraph 1-9d stated an honorable discharge was a separation with honor, and would be conditioned upon proper military behavior and proficient performance of duty.  Due consideration was to be given to the Soldier's age, length of service, grade, and general aptitude.  Where there had been disciplinary infractions, the extent would be considered, as well as the seriousness of the offense(s).  The governing factor was to be the pattern of behavior, not isolated instances.  Additionally, an authorized commander could character the Soldier's service as honorable when following were considered:

* conduct ratings of at least "Good"; efficiency ratings of a minimum of "Fair"
* no general court-martial convictions; not more than one special court-martial conviction; careful consideration was to be given to the nature of the offense(s), the sentence adjudged, and character of the remainder of the Soldier's service 

	b.  Paragraph 1-9e stated 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.

4.  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.


ABCMR Record of Proceedings (cont)	 AR20160013454


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