ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  7 June 2019

	DOCKET NUMBER:  AR20170004024


APPLICANT REQUESTS: 

* reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge
* a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 AR20130012507 on 25 March 2014.

2.  The applicant states:

	a.  He applied for reconsideration for a discharge review on 19 August 2015 and was told it would be at least 1 year before he would receive a reply.  He has lived with shame from the consequences of his actions for over 40 years.  He was reluctant to address the matter until his recent review of his long hidden records with an objective view.  The Army’s decisions on his discharge were based on misleading and incomplete information.

	b.  He enlisted in the Army at 18 years of age and entered on active duty in January 1972.  After basic training, he completed a leadership preparation course, graduated from advanced individual training, terminated an enlistment contract, and requested combat duty.  He was assigned to a unit in Germany; a battalion that lacked leadership throughout the ranks.  Insubordination and drug and alcohol abuse were excessive.  Measures against the Soldiers were treated lightly, at times condoned by the noncommissioned officers and their commanding officer.  After battalion and battery command changes, their idea for rehabilitation was to place suspected drug abuses together in a room without a door near the company commander’s office.  Ten Soldiers were placed in one room.  The record states that he could not be rehabilitated; yet, there were no programs for rehabilitation, only peer pressure.  There are no statements from counselors.  The record also does not state that he received a temporary charge as chief of his gun crew at that time.

	c.  The record misleads with a statement that he did not respond to counseling.  His only counselling was a single visit with the post chaplain, while his young daughter played in the office during their short visit.  Again, the record misleads.  The advice of his assigned counsel remains forever in memory—if he did not accept an undesirable discharge, he would go to prison for 10 years.  He was an adolescent kid from rural North Dakota; alone, overwhelmed, and scared.  He took counsel’s advice without an objective view of the environment that he was subjected to, the false or misleading statements, and consideration to the consequences.   

	d.  He does not agree with the statute of limitations to correct a wrong or an error.   He had no criminal record before military service or in the years since.  There is accountability on both sides of this matter.  After 40 years of shames, he wished to be relived of him and requests an honorable upgrade.

3.  Review of the applicant’s military record shows:

	a.  He enlisted in the Regular Army on 31 January 1972,for 3 years.  At the time of his enlistment, he was 18 years and 9 months of age.  He held military occupational specialty 13A (Cannoneer).  He was promoted to pay grade E-2 on 15 March 1972.  He served in Germany from 16 August 1972 to 20 January 1975.

	b.  On 7 June 1973, he accepted nonjudicial punishment (NJP) for being in possession of heroin on 2 April 1973 and marijuana on 23 April 1973.

	c.  His DD Form 458 (Charge Sheet), dated 23 August 1973, shows court-martial charges were preferred against him for one specification each of being in possession of marijuana and heroin on or about 3 July 1973. 

	d.  On 7 September 1973, after consulting with legal counsel, he was advised of the basis for the contemplated trial by court-martial for an offense punishable by an undesirable discharge.  Following consultation, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel).  He acknowledged:

* maximum punishment
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may be deprived of many or all Army benefits
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life

	e.  On 7 September 1973, the applicant’s company commander recommended approval of his discharge and issuance of a general discharge.  He stated the applicant had been involved with and picked up on suspected possession of drugs on four separate occasions, he received an NJP on only one occasions, he had been counseled on numerous occasions, and he had a history of drug involvement dating back to October 1972.  

	f.  On 7 and 10 September 1973, the applicant’s senior commanders recommended approval of his discharge request and the issuance of an undesirable discharge.

	g.  On 14 September 1973, the separation authority approved his request for voluntary discharge in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. 

	h.  Accordingly, he was discharged from active duty on 15 October 1973.  His DD Form 214 shows his service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  The form also shows he completed 1 year, 8 months, and 15 days of active service and he was awarded or authorized the:

* National Defense Service Medal
* Parachutist Badge
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  On 3 June 1982, the Army Discharge Review Board determined that he was properly discharged and denied his petition for a change in the type and nature of his discharge.

5.  On 24 March 2014, the ABCMR denied his petition for an upgrade of his discharge.

6.  By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial.  

7.  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.

8.  By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 
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 not warranted.  Based upon the relatively short term of service completed prior to the misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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.  Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

     a.  Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the Soldier’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

     b.  Paragraph 3-7b (General Discharge) – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

     c.  Chapter 10 – an individual who has committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service.  A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment.

2.  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.

3.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

     a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

     b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.


ABCMR Record of Proceedings (cont)	AR20170004024


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