ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170013045 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2-1 (Record of Assignments) * DD Form 214 (Armed Forces of the United States 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 given an under other than honorable conditions discharge after he became addicted to drugs. He was offered no chance to undergo drug treatment and was released to fend for himself. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 30 November 1971. b. On 23 June 1972, he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for departing from his unit in an absent without leave (AWOL) status on 1 June 1972, and did not return to military control until 5 June 1972. And again on 13 June 1972 to 19 June 1972. His punishment included a reduction in rank to private/E-1. c. On 17 January 1973, he was convicted by a special court-martial on 2 specifications of AWOL from 25 September 1972 to 29 September 1972 and from 7 November 1972 to 15 December 1972. His was sentence to reduction to private/E-1, forfeit $50.00 pay per month for 2 months and confined at hard labor for 60 days, was issued by a military judge and adjudged on 8 February 1973. d. On 23 June 1972, he accepted NJP, under the provisions of Article 15, UCMJ for wrongfully having marijuana in his possession. e. According to his DD Form 458 (Charge Sheet) dated 29 August 1973, court-martial charges were preferred against him for 2 specifications of AWOL from 1 August 1973 to 18 August 1973 and from 18 August 1973 to 22 August 1973, and one specification of breaking restriction. f. On 10 September 1973, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of a discharge under other than honorable conditions, if the request is approved and of the procedures and rights available to him. g. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 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 indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he acknowledged he understood 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 * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf h. On 17 September 1973, his commander recommended he be discharged for the good of the service and receive a chapter 10, AR 635-200 and receive an undesirable discharge certificate. i. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an undesirable discharge. j. He was discharged on 19 October 1973. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. It also shows he completed 1 year, 6 months, and 12 days of active service with 128 days of lost time. k. He was awarded or authorized the National Defense Service Medal and the Marksmanship Qualification Badge with Rifle Bar (M-16). 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service. After considering the evidence, the ADRB denied his request. 5. By regulation,(AR 635-200) a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service 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 there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the pattern of misconduct over a relatively short term of service, 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. 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) provides that 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) provides that 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. A characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for which, under the UCMJ and the MCM, 1969 (Rev), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The provisions of the Table of Maximum Punishments, section B, paragraph 127c, MCM 1969 (Rev) do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court-martial charges are preferred against the member, or, where required, after referral, until final action on the case by the court-martial convening authority. 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 (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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013045 4 1