ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20160016720 APPLICANT REQUESTS: reconsideration of his prior request for upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC89-05753 on 10 January 1990. 2. The applicant states: a. He purchased what he thought were cigarettes that turned out to be marijuana and he became addicted. He broke the law to get money to support his habit. There was no warning by his superiors not to do the drugs and no warning in Basic Combat Training (BCT). b. Other individuals have committed what he considers to be truly high class crimes against the Government and they were pardoned and forgiven. Why should he be punished and denied his benefits such as a pension, which he needs badly to survive, when he is no criminal, but rather what a lot of people consider to be a panhandler? c. He is deeply embarrassed by his discharge. He did the best he could though. He was up for Soldier of the month, one month before he left the Army. He made all of his missions even though there were other Soldiers who would try to buy their way out of the country in Vietnam, deserting, yet still receiving their benefits and an honorable discharge. d. He started out as a personnel clerk to General Westmoreland when he first arrived in Vietnam. When he was sent to his permanent unit he became the battalion clerk and had his own office and personal secretary, then he smoked what he thought was a cigarette and it turned out to be an illegal drug. That’s when things became hellish. He is a good person; he really is. e. He has a niece who has serviced in the Army for 19 years and was recently promoted to the rank of major. He also has a brother who served as a Green Beret Medic, while he himself is treated like an outcast by his family and has been homeless for many years. f. Please give him at least a general discharge so he can correct his financial problems and be okay. He feels really bad, has severe depression, and can’t walk due to severe arthritis. He is proud he served and has two honorable discharges, one from the Army and one from the Navy. Please don’t let him die unhappy. He suffered a stroke, lost the eyesight in his left eye, his sons don’t communicate with him, and he needs his benefits to survive. He cannot continue being out in the cold. He has been “clean” for 7 years and does not do any illegal drugs or drink alcohol. g. He loves his country and is a true patriot. He votes and prays for us all. He is not even entitled to a flag if he were to die today and that’s not right. He is a good person and was in combat. Please do him justice. When he returned home from Vietnam to Philadelphia, PA, he got accepted to the Philadelphia Police Department, but he knew he had an addiction so he refused the offer. Right now he hates drugs, especially marijuana, and wouldn’t advise anyone to do it because he knows for a fact it can be a gateway drug. God bless you and your families and the United States of America. He has a flag on his door and on his wheelchair. He loves America; please be fair and grand him an upgrade. 3. The applicant enlisted in the Regular Army on 12 November 1966 and was awarded the military occupational specialty 70A (Clerk). 4. Multiple DA forms 2627-1 (Report of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) show he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on the following occasions for the following offenses: * 7 February 1967, for absenting himself from his unit without proper authority on or about 6 February 1967 and remaining absent until on or about 7 February 1967 * 15 March 1967, for absenting himself from his unit without proper authority on or about on or about 13 March 1967 and remaining absent until on or about 15 March 1967 5. He was honorably discharged on 7 August 1967 for the purpose of immediate reenlistment. He reenlisted in the Regular Army on 8 August 1967 and served in Vietnam from 15 October 1967 through 11 October 1968. 6. He again accepted NJP under Article 15 of the UCMJ on 27 June 1969, for failure to repair on 24 June 1969 7. A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 3 December 1969 shows on 23 September 1969, while in pretrial confinement at the Fort Dix Post Stockade, the applicant sustained back, leg, and groin injuries as a direct result of intentional misconduct while instigating a disturbance when confronted by stockade security personnel. 8. On 18 December 1969, he was charged with: * absenting himself from his unit on or about 15 December 1969 until an unspecified date * absenting himself without authority from his place of duty, charge of quarters, on or about 13 July 1969 * failing to go to his appointed place of duty at the orderly room on or about 2 August 1969 * forging the signature of First Lieutenant X X on or about 11 August 1969, for the purpose of obtaining the payment of a claim against the United States * absenting himself without authority from his organization on or about 22 August 1969 and remaining absent until on or about 29 August 1969 9. The undated “Findings and Recommendations” of an Article 32, UCMJ investigation show the applicant committed the crime of mail fraud and larceny while he was the unit mail clerk by placing jewelry orders using fictitious or unauthorized names and upon their receipt to the unit mail room took possession of the orders. His trial by general court-martial was recommended. 10. On 28 May 1970, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He did not submit a statement in his own behalf. 11. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court- martial on 12 June 1970, after 2 years, 3 months, and 14 days of net active service this period with 201 days of lost time from 27 December 1968 – 2 February 1969, 22 August 1969 – 28 August 1969, and 15 December 1969 – 19 May 1970. His service was characterized as under other than honorable conditions. 9. The applicant applied to the Army Discharge Review Board (ADRB) requesting a discharge upgrade and on 1 July 1974, the ADRB denied his request, determining he had been properly discharged. 10. The applicant subsequently applied to the ABCMR, requesting a discharge upgrade and on 10 January 1990, the Board denied his request 11. On 14 March 2019, the Army Review Boards Agency medical advisor provided an advisory opinion. He concluded there is no evidence of a medical or behavioral health condition mitigating the misconduct that led to the applicant’s discharge from the Army or would support a change to the character or reason for the discharge in this case. 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 20 March 2019, and given an opportunity to submit comments, but he did not respond. 13. 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. 14. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence 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 were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity. The Board agreed with the medical advisory opinion that review of the medical records does not support a mitigating Behavioral Health Condition as the cause for the misconduct leading to his discharge from the Army. The Board further found limited evidence of other possible mitigating factors that may have resulted in consideration of a characterization upgrade, for example, periods of honorable conduct (personal meritorious awards, a completed enlistment) or rehabilitation in the form of evidence of post-service honorable conduct. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the applicant’s discharge characterization 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. 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. 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. 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. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence 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 were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. //NOTHING FOLLOWS//