ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 February 2019 DOCKET NUMBER: AR20160014632 APPLICANT REQUESTS: His under other than honorable condition (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * a personal statement * Department of Veterans Affairs (VA) letter of service 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 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 would like to address an unjust matter concerning the UOTHC discharge he received in 1982. b. He come from a battered home where there was a lot of drug abuse and physical and mental pain. He took to the streets of New York City and the drugs became his safe heaven, but they were not very pleasant to him. c. He joined the military to get away and make something of himself; at the time, he was into heavy drug use. Little did he know, he would be doing drugs throughout his entire period of service. He had a real bad drug problem and was a very bitter angry person. d. He fought a lot and rebelled against authority figures. He got himself into so many altercations and fights but not once did any of his leaders ever ask him if he had a problem with drugs or anger issues, and no one offered to get an evaluation done. He needed help and he was constantly in trouble; someone should have noticed that there was a problem. He didn't notice the problem because he was using drugs. e. He feels the failure of the military to recognize his problem was a disservice to him and all these years later, he still can't understand why he didn't receive some kind of help for his problem. The decision he made such a long time ago still haunts him. f. When he separated from the military he came home, his life was in shambles, and he threw himself deeper into his drug use because he became depressed and thought his life was ruined. g. He did that for many years until he finally put himself into a therapeutic community and got the help he needed. He has been clean for 15 years. It has not been an easy road but he knows that using drugs is not the answer. 3. The applicant enlisted in the Regular Army on 8 July 1980. 4. The applicant was read his rights and questioned on three occasions, in regards to an investigation of the break-in of another Soldier's room with damage to government property and the theft of the personal items and currency. During the questioning, he admitted to having committed the crime. 5. Court-martial charges were preferred against the applicant on 10 August 1982, for: * unlawful entry with the intent to commit a criminal offense * theft of $300.00 in cash * theft of private property (a television) valued at $500.00 * theft of private property (a clock radio) valued at $32.00 * theft of government property valued at $271.22 * destruction of government property valued at $50.00 6. The applicant consulted with legal counsel on 23 August 1982. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf; however, he elected not to submit any statements. 7. The appropriate authority approved the applicant's request for discharge on 24 August 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed the applicant be reduced to the lowest enlisted grade and receive a UOTHC. 8. The applicant was discharged on 2 August 1982. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and his service characterization was UOTHC. 9. The applicant was charged commission of offenses punishable under the Uniform Code of Military Justice for which a punitive discharge is authorized. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 10. The available record contains no evidence of the applicant's alleged drug abuse or the other factors he sets forth in his personal statement. 11. The Board should consider the applicant's personal statement and his contentions regarding his abusive family life and history of untreated drug abuse, both before and during his period of service, in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance. The Board finds the applicant's discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. The Board finds his separation was both proper and equitable. 2. The applicant’s service record shows no evidence of honorable service during his service from 8 July 1980 to 2 August 1982. His pattern of misconduct went beyond himself and impacted others and unit morale, discipline and trust. He admitted to having committed the crime of breaking-in of another Soldier's room with damage to government property and the theft of the personal items and currency. The available record contains no evidence of the applicant's alleged drug abuse or the other factors he sets forth in his personal statement. 3. The Board recognizes the journey the applicant has gone through and highly appreciates and commends his 15 years of being clean from drugs and turning his life around. The Board considered the applicant's personal statement and his contentions regarding his abusive family life and history of untreated drug abuse, both before and during his period of service, in accordance with the published equity, injustice, or clemency determination guidance. However, the greater weight of evidence, even when applying liberal consideration standards, does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200. Consequently, the applicant has not demonstrated by a preponderance of evidence that an honorable discharge is warranted. 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, 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 states that 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. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, Boards 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. ABCMR Record of Proceedings (cont) AR20160014632 4 1