ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20170015328 APPLICANT REQUESTS: * an upgrade of his other than honorable conditions discharge upgraded to an honorable or general under honorable conditions * his Military Occupational Specialty listed as 11C10 on his DD Form 214 (Report of Separation from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Character reference letter from X. * DA Form 2-1 (page 1 only) * DD Form 214 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 discharged because he was found to be in possession of small amounts of marijuana twice. He was never drug tested following those instances. He readily admitted that the marijuana found the first time was in his possession. The second time, it was found during an inspection for which he was not initially present. He did not have marijuana in his gear prior to his guard duty. He assumes it was placed there by another individual when they found out about the inspection. He learned his lesson from the first incident and have stayed away from illegal narcotics since that time. 3. The applicant provides: a. A character letter from L.J., which states he has known the applicant for 34 years and has been a role model. He taught him how to hunt as well as many life lessons. He is a hardworking and productive citizen who also volunteers at Rosedale Senior Center with food delivers and maintenance. He is grateful to have had him in his life growing up. b. The first page of his DA Form 2-1, which provides various data pertaining to his military career. c His DD Form 214 showing a synopsis of his career while in the service. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 21 May 1975. b. He accepted nonjudicial punishment (NJP) under Article 15 on 15 June 1976, for wrongful possession of some amount, more or less of marijuana. His punishment included reduction to E-1 (suspended for 90 days), forfeiture of $100.00 for two months (suspended for 90 days) and 30 days extra duty. c. DD Form 458 (Charge Sheet), dated 22 June 1976, special court-martial charges were preferred against him for one specification of wrongfully have in his possession, an undetermined amount of marijuana. d. On 2 August 1976, he consulted with legal counsel and was advised of his rights. Following consultation with counsel, he subsequently requested, a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. In his request, he acknowledged: * he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate * he did not desire further rehabilitation or a desire to perform further military service * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law * he could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge e. Consistent with the chain of commands recommendations the separation authority approved the discharge on 17 August 1976 and furnished an Undesirable Discharge Certificate in accordance with paragraph 10-7, Army Regulation 635-200. f. On 27 August 1976, he was discharged from active duty under the provision of AR 635-200, chapter 10. He completed 1 year, 3 months and 7 days of active service during this period of service 5. By regulation, a member who has committed an offense 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. 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: 1. After reviewing the application and all supporting documents, the Board found some relief was warranted. The applicant’s contentions and letter of support was carefully considered. His record clearly shows he was awarded MOS 11C; however, his DD Form 214 lists his MOS as 11B. The Board agreed the MOS should be changed accordingly. 2. In reference to his request for a character of service change, 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 evidence of post-service achievements for the Board to consider. He requested a discharge in lieu of court-martial, which by doing so was admitting guilt to the charges. Based upon the relatively short term of honorable service completed prior to multiple drug offenses, as well as the failure to fully accept responsibility and show remorse for the events leading to his separation, 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 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 amending item 16a (Primary Specialty Name and Title) on his DD Form 214 for the period ending 27 August 1976 to show the entry “11C1O Indirect Fire Infantryman.”. 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 changing his character of service. 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 Regulations 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. When a Soldier is discharged before ETS for a reason for which an honorable discharge is discretionary, the following considerations apply. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). b. 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. c. Chapter 10 of that regulation provides that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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 character. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015328 4 1