ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20160017039 APPLICANT REQUESTS: In effect, an upgrade of his under other than honorable conditions (UOTHC) discharge to a more favorable discharge. 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) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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. The applicant did not make a statement in his own behalf. 3. The applicant enlisted in the Regular Army on 25 November 1976. 4. The applicant was assigned to the 3rd Armored Calvary Regiment in Germany from on or about 10 April 1977 through on or about 6 April 1979. 5. The applicant was discharged for immediate reenlistment at Fort Hood, TX on 28 June 1979. His DD Form 214 (Report of Separation from Active Duty) shows in: * Item 9e (Character of Service) – "HONORABLE" * Item 18c (Total Active Service) – he was credited with 2 years and 7 months of creditable service * Item 18f (Foreign or Sea Service This Period) – he was credited with 1 year, 4 months and, 20 days of foreign service * Item 21 (Time Lost) – he had 3 days of lost time 6. The applicant accepted nonjudicial punishment (NJP) on 21 April 1980, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent from his place of duty from on or about 10 April 1980 through on or about 13 April 1980. 7. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was assigned to the 169th Signal Company, Korea on or about 5 March 1981. 8. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the following occasions: * on 12 March 1981, for being absent from his place of duty from on or about 22 February 1981 through on or about 28 February 1981 * on 7 January 1982, for failing to report to his prescribed placed of duty on or about 12 November, 18 November, 19 November, 25 November and 7 December 1981 * on 10 February 1982, for failing to go his prescribed place of duty on or about 12 January 1982 and being absent from his place of duty from on or about 15 January 1982 to 17 January 1982 9. Court-martial charges were preferred against the applicant on 4 February 1982 for violations of the UCMJ. The DD Form 458 (Charge Sheet) shows he was charged with wrongfully possessing, transferring, and selling an amount of a dangerous drug: Methamphetamine; outside the territorial limits of the United States, and not being cognizable in a U.S. Civilian Court. 10. The applicant consulted with legal counsel on 5 February 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 Veterans Administration, 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. He indicated his desire to submit a statement in his own behalf. His statement noted: * he was 27 years old and married with a 6 month old child, which he had never seen * that his biological mother died in December 1979 and his biological father right before he went to Korea * that, during the Thanksgiving Holiday the previous year, his stepfather was crippled in an automobile accident, his stepmother fell ill and needed an operation but he didn’t have leave to go home * that, he was under a lot of strain and wasn’t thinking clearly * that, he helped the Criminal Investigation Division by giving up his source, leading to his capture, which made him feel in danger while in Korea * he tried to do the right thing by cooperating with the police, without any promises, and putting his life in danger 11. The separation authority approved the applicant's request for discharge on 24 February 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC Discharge Certificate. 12. The applicant was discharged on 3 March 1982. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows his service was characterized as UOTHC, and further shows in: * Item 12c (Net Active Service This Period), he was credited with completing 2 years, 7 months, and 27 days; * Item 28 (Narrative Reason for Separation), the entry "Administrative discharge conduct triable by Court-Martial" * Item 29 (Date of Time Lost During This Period), “TIME LOST UNDER USC 972 – 8 DAYS FROM 810122-810227; 820115-820116” 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. 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. 14. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Based upon multiple offenses to the UCMJ over an extended period of time, the Board concluded that the characterization of service received at the time of discharge was appropriate and that no relief was recommended. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. 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 under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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. 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) AR20160017039 5 1