ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 11 April 2019 DOCKET NUMBER: AR20160014586 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under other than honorable conditions discharge to honorable or to under honorable conditions (general). 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, 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110000137 on 26 May 2011. 3. The applicant states: * he was poisoned at Fort Knox, KY by another Soldier; he had no idea what was put in his drink * he was then hospitalized therefore his discharge should be changed to honorable based on this fact * he was tricked and done wrong 4. The applicant enlisted in the Regular Army on 6 March 1974. 5. The applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 9 April 1974 for being absent without leave (AWOL) during the period 20 March to 8 April 1974. 6. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was AWOL during the following periods: * 14 April - 30 June 1974 * 21 July - 8 September 1974 7. On 9 September 1974, court-martial charges were preferred against the applicant for his AWOL offenses. 8. On 30 September 1974, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 8. In doing so, he acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he was advised of the implications attached to it * he could be discharged under other than honorable conditions * he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 9. On 3 October 1974, his request for discharge was approved. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 8 October 1974 with his service characterized as under other than honorable conditions. 10. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 11. On 13 February 2019, the Army Review Boards Agency clinical psychologist/medical advisor provided an advisory opinion. The advisory found that the applicant's records do not show, and he did not provide, documentation supporting a diagnosis or its contribution to his misconduct. Based on a thorough review of available records, there is insufficient evidence supporting the applicant's current contention that he was drugged resulting in misconduct or his previous claim that post-traumatic stress disorder symptoms contributed. A copy of the complete medical advisory was provided to the Board for their review and consideration. 12. The applicant was provided a copy of the advisory opinion on 6 November 2017 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, and the medical advisory were carefully considered. The medical advisory official determined there were no mitigating factors to his misconduct and subsequent separation. He was provided the opportunity to rebut the advisory; however, he did not respond. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 to amend the decision of the ABCMR set forth in Docket Number AR20110000137 on 26 May 2011. 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to the Service Discharge Review Boards (DRBs) and Service 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) AR20160014586 4 1