ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20180001537


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* VA Form 21-4138 (Statement in Support Claim)

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 respectfully request an upgrade of his discharge to honorable or under honorable conditions (general).  He joined the Army as a naive farm boy from Wisconsin and he was sent to Mainz Army Base in Germany.  When he arrived in Germany, his two sponsors took him in a room and had him snort some heroin and they shot him up with heroin.  He knew this was wrong but, they were his sponsors and out ranked him.  This is what they did at this unit.  He regret his bad decision and wish he would have been strong enough to just say no.  He believe the Army should have gave him treatment for heroin not punishment.

3.   A review of the applicant's service records shows: 

	a.  He enlisted in the Regular Army on 26 March 1979.

	b.  During initial entry training at Fort Leonard Wood, MO he accepted nonjudicial punishment for on or about 27 May 1979, wrongfully have in your possession one ounce or less of a narcotic drug.  His punishment was forfeiture of $79.00 per month for a period of one month.

	c.  He was assigned to Germany on 15 July 1979.

	d.  On 30 July 1980, a DD Form 458 (Charge Sheet), indicates he was charged with one specification of being absent without leave (AWOL) on or about 5 March 1980 and did remain so absent until on or about 20 July 1980.  He was assigned to the US. Army Personnel Control Facility, Fort Knox, KY.

	e.  He acknowledged and consulted with legal counsel on 31 July 1980.  Counsel advised him of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion
* by submitting this request he was acknowledging he was guilty of the charge(s) against him or a lesser included offense
* he understood that if the discharge request was accepted he could be furnished an Under Other Than Honorable Discharge
* he understood if such a discharge 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 could be deprived of his rights and benefits as a veteran under both Federal and State laws

	f.  His immediate commander and battalion commander both recommended approval of his discharge request on 19 August 1980.  

	g.  On 25 August 1980, consistent with the chain of command recommendation, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be discharged with an under other than honorable conditions discharge, reduction to the lowest enlisted grade.

	h.  On 16 September 1980, the applicant was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 10, with an under other than honorable condition characterization of service.  He completed 1 year, 1 month and 6 days of active service with 137 days of lost time. It also shows he was awarded or authorized:

* Expert Marksmanship Qualification Badge with the Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar 
	
4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  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 short term of honorable service completed prior to a lengthy period of AWOL, as well as the failure to 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

:	:	:	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), sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13 (Honorable discharge) 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.

	b.  Paragraph 1-13b (General discharge) 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.

	c.  Paragraph 1-13c (Under other than honorable conditions) a discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service

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 ABCMRs 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, ABCMRs 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180001537


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