ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170000139 APPLICANT REQUESTS: His discharge be upgraded to a minimum of general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 17 February 1978 and 3 November 1978 * Memorandum reason for separation, date 23 May 1979 * Social Security Administration (SSA) order of administrative law judge * Certificate of live birth and social security card * DA Form 428 (Application for Identification Card) * DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release From Active Duty) * Quality Control audit check list * DA Form 1315 (Reenlistment Data) * DA Form 2496 (Disposition Form) * DA Form 4187 (Personnel Action) * DA Form 3286-40 page 1 (Statements for Enlistment- Delayed Entry Program) * Orders 97-24, dated 21 May 1979 * State of AL Department of Veterans Affairs (DVA) fax cover sheet * Memorandum warning against reentering the military reservation, dated 23 May 1979 * DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States) * DD Form 2-1 (Personnel Qualification Record) * Explanation of selected items on front of records * Support letter from Rev X____ X , dated 18 November 2016 * Letter from SSA, dated 18 May 2009 * Letter from National Personnel Records Center (NPRC), dated 14 September 2016 * Letter from Army Review Board Agency (ARBA) Case Management Division (CMD), dated 5 January 2017 * Letters of support * 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 he was not a bad person, he did make it to private first class and did some good things. It has been 37 years since his discharge. 3. The applicant provides: a. DA Form 2627, which shows he accepted non-judicial punishment (NJP) on 17 February 1978 for possession of a controlled substance (marijuana) and a second one that shows he accepted NJP on 3 November 1978 for possession of marijuana. b. Memorandum stating reason for separation was administrative discharge – conduct triable by court-martial from immediate commander, dated 23 May 1979. d. SSA order of administrative law judge, stating the applicant’s claim for supplemental security income. The judge approved the fee agreement between the applicant and his representative subject to the condition that the claim results in past- due benefits. The judge’s determination is limited to whether the fee agreement meets the statutory conditions for approval and is not otherwise accepted. The judge neither approve nor disapprove any other aspect of the agreement. c. Birth certificate showing the applicant was born 6 May 1960 and social security card, and an application for identification card with photo that shows the applicant applied for identification card on 17 May 1978. d. Undated and unsigned physical data and aptitude test scores upon release from Active Duty; quality control audit check list; and reenlistment data which shows reenlistment interview dates for unit commander. e. Disposition form (DA Form 2496) that shows the applicant had to call for an annual record audit. f. Personnel action (DA Form 4187) that shows he was promoted to E-3 on 1 September 1978. g. Statements for enlistment (DA Form 3286-40) – delayed entry program showing he enlisted as a 76D (Material Supply man), scheduled for 11 October 1977. h. Orders Number 97-24, dated 21 May 1979 showing 23 May 1979 as discharge date. c. i. Request pertaining to military records showing request made by X____ X____ for DD Form 214 (Report of Separation from Active Duty), Official Military Personnel File (OMPF), and benefits. j. Memorandum warning applicant against reentering the military reservation, dated 23 May 1979. k. DD Form 4 showing he enlisted on 17 May 1977 in the US Army Reserve and DA Form 2-1 showing data from his time in the military. l. Explanation of selected items on front of records. m. Support letter from Revered X____ X____ dated 18 November 2016 stating the applicant is an active member of the church. He is a member in good standings and a great brother in the church and his family. The church knows personally that he is a family man of seven children and a dedicated husband to his spouse. They have been in council with the church and the church is aware of their struggles trying to maintain their home and personal affairs. The church has tried to be of some assistance but they are in need of much more. n. Letter from SSA with notice of decision being fully favorable. To summarize briefly, the applicant was found disabled as of 12 June 2006 because of mild mental retardation, cocaine abuse in early remission, moderate spondylosis with decreased lordosis in lumbar spine, impairments so severe that you are unable to perform any work existing in significant numbers in the national economy. o. Fax cover sheet from X____ X____ State of Alabama Department of Veterans Affairs. p. Letter from NPRC, dated 14 September 2016, notifying the Veteran Service Officer X____ X____ that documents from the applicant’s OMPF were enclosed. q. Letter from ARBA CMD, dated 5 January 2017, acknowledging the receipt of the DD Form 149 also notifying the applicant of the case number assigned to him. r. Letter from X____ X____, dated 18 October 2016, stating she has been knowing the applicant for over 20 years. He is married and he and his wife are really good people. He has always come by her store and pick up and paper around the door. s. Letter from X____ X____, stating he has been friends with the applicant for 20 years. He has a nice family and he is trying to survive. t. Letter from X____ X____, stating he has known the applicant for more than 12 years. He is a good man and does his part to help support the community. c. 4. A review of the applicant’s service records show the following: a. He enlisted in the Regular Army on 11 October 1977. b. The applicant received NJP on/for * 17 February 1978, wrongfully have in his possession a controlled substance (marijuana) and transfer a controlled substance (marijuana) * 3 November 1978, wrongfully have in his possession 1 ounce, more or less of marijuana; his punishment included reduction to PV2/E-2 (suspended) c. The applicant’s record is void of any separation documentation. However, his record contains a DD Form 214 that shows he was discharged on 23 May 1979, in the rank of PVT/E-1, under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 10 (in lieu of trial by a court-martial) with an under other than honorable conditions characterization of service. He had total active service of 1 year, 7 months, and 13 days. 5. By regulation (AR 635-200), chapter 10 provides 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. A discharge under other than honorable conditions is normally considered appropriate. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted. Based upon the type of misconduct in the record and the demonstrated growth of the applicant through character statements from others, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 5/28/2019 X CHAIRPERSON Signed by: 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 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 1-13a(1) states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A member will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. It is pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service. When there is doubt as to whether an honorable or general discharge should be furnished, the doubt should be resolved in favor of the member. b. Paragraph 1-13a(2) states an honorable discharge may be furnished when disqualifying entries in the member's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. Careful consideration will be given to the nature of the offense and sentence adjudged by a court-martial. When, in the opinion of the officer effecting discharge, these have not been too serious and severe, and the remainder of the service in the enlistment has been such that an honorable discharge may be awarded, doubt should be resolved in favor of the member. a. c. Paragraph 1-13b states a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent nonjudicial punishments but not for serious infractions. He may be a troublemaker, but his conduct is not so bad as to require discharge for cause or a discharge under less than honorable conditions. When a member's service is characterized as general, except when discharged by reason of unsuitability, misconduct, homosexuality, or security, the specific basis for such separation will be included in the member's military personnel record. 3. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct.