ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 April 2019 DOCKET NUMBER: AR20160018887 APPLICANT REQUESTS: His undesirable discharge (UD) be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty), for the period ending 9 July 1979 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 states he made a big mistake while serving in Germany. He asked for discharge in lieu of court-martial and has been sorry ever since. He purchased two little pills and then decided not to use them so he sold them to a well-known drug addict. He was young and stupid at the time but since that time he has had a clean record. 3. The applicant enlisted in the Regular Army on 2 November 1976. 4. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * 11 December 1976, for failure to go to his place of duty on or about 2 December 1976 * 26 September 1977, for failure to go to his place of duty and sleeping on guard duty on or about 21 August and 28 August 1977, respectively * 7 March 1978, for failure to go to his place of duty on or about 27 February 1978 * 24 August 1978, for failure to go to his place of duty on or about 4 August and 9 August 1978, respectively * 13 March 1979, for failure to go to his place of duty on or about 2 February 1979 5. A U.S. Army Criminal Investigation Command Report of Investigation, dated 2 May 1979, indicates the applicant was named in an investigation for wrongful possession and sale of a controlled substance on 4 April 1979. 6. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 7. The applicant consulted with legal counsel on 18 May 1979. 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. His request for discharge indicates he submitted a statement; however, it is not available for review. 8. The applicant was afforded a Mental Status Evaluation, wherein medical officials cleared him for any administrative actions deemed appropriate. 9. The separation authority approved the applicant's request for discharge on 18 June 1979, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and discharged UOTHC. 10. The applicant was discharged on 9 July 1979, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and his service characterization was UOTHC. 11. The Army Discharge Review Board denied the applicant's request for an upgrade on 8 November 1982. 12. 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. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include DoD guidance on liberal consideration when considering discharge upgrades, the Board determined that relief was warranted. Based upon the age of the applicant at the time of the misconduct, the type of misconduct and the passage of time, as well as the guidance on liberal consideration, the Board concluded that granting clemency to the applicant by upgrading the characterization of service received to Under Honorable Conditions (General) was appropriate. For that reason, the Board recommended granting the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading the characterization of his discharge to Under Honorable Conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to Honorable. 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 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides 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 (Active Duty Enlisted Administrative Separations) sets 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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 UOTHC is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 4. The Manuel for Court-Martials, Table of Maximum Punishment provides that a conviction for wrongful use, possession, manufacture, or introduction of Amphetamine, cocaine, heroin, lysergic acid diethylamide (LSD), marijuana (except possession of less than 30 grams or use), methamphetamine, opium, phencyclidine, secobarbital, and Schedule I, II, and III controlled substances carries a maximum punishment of a dishonorable or bad conduct discharge, 5 years confinement, and a total forfeiture of all pay and allowances. 5. 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) AR20160018887 0 3 1