ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 June 2019 DOCKET NUMBER: AR20170011318 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general or honorable discharge. 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) * Two statements from the applicant 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, a. He believes he was setup because of prejudice from Staff Sergeant (SSG) R. his NCOIC (Non Commissioned Officer In Charge) whom he met while stationed at Fort Monmouth, NJ. He continued to show signs of unfairness when they arrived in Germany because he only put certain white personnel on TDY (Temporary Duty), certain field maneuvers and tours of duty such as Egypt. b. His NCOIC recommended him for an Article 15. Since he stood up for himself and proved his innocence, he was later investigated and court-martialed for sale, possession, and transportation of marijuana in the hashish form, and breaking restriction. He was found not guilty of the first three charges but guilty of breaking restriction. He felt falsely accused for being put on restriction. c. After he did 8 out of 10 days in Manheim, he was returned to his unit. The next day, he met SSG R. in Captain R. office and was asked if he wanted to be discharged. He said no because he did not want to be seen as a quitter. His NCOIC then stated “we will see." After a few months, he was driving a friend’s car because he was intoxicated. He was not drinking and they were searched at the gate. They found a canister with hashish and an envelope containing $5,000 under the driver’s seat. d. He was charged because he was driving but the owner of the car was not. He claims the money and drugs were not his. He was charged again with the sale, possession and transportation of marijuana in the hashish form. Instead of facing another court martial, he agreed to accept the chapter 10. He was done fighting a fight he could not win. He admits that he started smoking marijuana in AIT (Advance Individual Training) and did not stop until 2008 for his kids’ sake. He had a background check done by his employer and passed with flying colors except when questioned about his discharge. He is trying to fix this by applying for an upgrade from under other than honorable conditions to general. e. All the men in his family have served in the armed forces. He was in the Army when Iraq took 52 Americans hostage at which time he volunteered to go to Egypt to help set up communications. But SSG R did not seem to like anyone who was not white. He spent all his time in Germany but unfortunately he was young and may have done some stupid things being in one place. He has been married for 36 years and has 3 wonderful children. He was raised by his grandparents and taught to work hard and treat everyone with respect. f. In his life time, he has met many people and held different types of occupations, and with little education but still managed to pass every test that he has taken for every position such as electrical contractor, and journeyman. He has succeeded to the top of everything he has done. Even though he has encountered many obstacles to include prejudice by being of Hispanic heritage, he has a lot of patience and understanding which he thinks has helped a lot. He believes we are responsible for our own actions, and should take responsibility for what we do in life. g. Right now, he is in the process of getting his commercial driver’s license. Being in the United States Army has trained him to be a hard worker and a proud person. He is willing to take retraining in the Army, to get his honorable discharge and take any test needed, even a drug test. He has coached kids in wrestling and football. He thanks the Board for giving him a chance to try and upgrade not just his discharge, but him as a human being. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 28 November 1978. b. Court marital charges were preferred on 9 December 1980. His DD Form 458 (Charge Sheet) indicates he was charged with: * wrongful possession, sale and transfer of marijuana in the hashish form on or about 31 October 1980 and 3 November 1980 * possession of marijuana in the hashish form on or about 13 November 1980 * breaking restriction on or about 28 and 30 November 1980 c. He consulted with legal counsel on 22 December 1980 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if his request was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * if approved, he would be deprived of many or all Army benefits * he may be ineligible for many or all benefits administered by the Veterans Administration, and that 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 because of an under other than honorable conditions discharge d. On 12 January 1981 the company commander recommended approval of the applicant request for discharge for the good of the service and recommend he receive an other than honorable discharge. e. Consistent with the chain of command's recommendation, on 20 January 1981, the separation authority approved the applicant’s request for discharge for the good of the service with an under other than honorable conditions discharge. He would be reduced to the lowest enlisted pay grade. f. On 2 February 1981, he was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. He completed 2 years, 2 months, and 5 days of active service. 4. By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Under Other Than Honorable Conditions Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 5. By regulation, a member who requests discharge as prescribed in chapter 10 may be issued an under other than honorable conditions discharge if he or she has been afforded the opportunity to consult with a consulting counsel. The member must certify in writing that he or she, understands that he or she may receive a discharge under other than honorable conditions. The member must understand the adverse nature and possible consequences of such a discharge. The member must personally sign a request for discharge. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions, his service record, the frequency and nature of his misconduct and the reason for his separation were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigating factors. The applicant provided a statement, but did not provide supporting character statements or evidence of post-service achievements for the Board to consider for a clemency determination. Based a preponderance of evidence, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the Service. However, the separation authority may direct a General Discharge Certificate, if such is merited by the member'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 (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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS//