BOARD DATE: 24 March 2020 DOCKET NUMBER: AR20180001539 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal) in lieu of DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter * Army Review Boards Agency, Congressional Liaison and Inquiries Letter, dated 21 October 2019 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 is requesting an upgrade in order to receive medical and other benefits. He is homeless and disabled because of cancer. He is 57 and a half years old and has not been in any trouble in 17 years. He has been a good citizen and he would like to have a good discharge. It is only right that the Board consider an upgrade of his discharge. He was young and dumb while serving in the military and made many mistakes. He would like to get a better job and apply for college. 3. On 10 May 1979, the applicant enlisted in the Regular Army for a term of 3 years. On 14 January 1982, he reenlisted, at the age of 21 years old, for a term 6 years. 4. After completing his one station unit training, he was stationed at Fort Sill, OK, and on 7 March 1983, he was further assigned overseas to Germany. 5. On 3 August 1983, he was promoted to Sergeant (SGT)/E-5. On 11 April 1984, he accepted nonjudicial punishment (NJP) for operating a vehicle while drunk; as a result, he was reduced to Specialist (SPC)/E-4. 6. The applicant was the subject of a Criminal Investigation Division (CID) Report as a suspect in possessing and using marijuana (hashish). On 17 April 1984, a confidential source (CS) contacted a CID agent and informed the agent that he observed three noncommissioned officers (NCOs) possessing and smoking marijuana (hashish) during a period between 7-8 April 1984. The CS indicated that he witnessed an unidentified black male supply the applicant with 1 gram of marijuana. The CS went on to say that he was inside the room when he observed the applicant take the hashish and light a smoking device fashioned from a Coke can. The applicant then passed the hashish around the room. The CS further observed the applicant and the two other NCOs smoke from the same device. In addition to possession and use of marijuana, the applicant was named as a witness in the First Sergeant’s car being vandalized, but he denied witnessing anything regarding the vandalized vehicle. 7. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for commission of a serious offense. He stated the reason for the proposed action was the applicant involved in possession and/or use of controlled substances; driving while intoxicated; and failure to report an incident of serious vandalism. 8. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised of the basis for the contemplated action, understood his rights, waived consideration of his case before a Board, and elected not to submit statements in his own behalf. 9. By memorandum, subject: Recommendation for Elimination . . ., dated 1 June 1984, the commander stated a. The applicant demonstrated serious misconduct through several recent incidents of totally unprofessional behavior. In early March i984, he was apprehended for drunk driving. Then, in early April, he became party to an act of deliberate vandalism directed against the automobile owned by the unit First Sergeant. Although Sutton did not actually break out the car's window, he was present when an NCO friend of his did the actual damage, and he failed to report the incident. Furthermore, when questioned about the incident by local investigators, the applicant denied having been present, or having any knowledge of the vandalism. His statement was directly contradicted by two other eye-witnesses present at the scene. b. This kind of inaction represents this Soldier as unreliable, of questionable integrity, and not worthy of future trust or positions of responsibility. The final act of misconduct in support of this proposed discharge surrounds the applicant's implication by two eye-witnesses in the use of hashish. Although he denies use of the drug, two other eye-witnesses clearly established that he did use hashish and did so on more than one occasion while assigned in a nuclear missile brigade. Taken together, all these incidents add up to the commission of serious offenses for which discharge is necessary and appropriate. He recommended approval. 10. The applicant’s the chain of command recommended approval of the separation but to have the case referred to a board of officers. In the applicant’s election of rights, he waived consideration of his case before the board. a. On 4 June 1984, the Command Judge Advocate found the administrative elimination to be legally sufficient and on 5 June 1984, the appropriate commander approved the recommendation for separation, and directed that the applicant be discharged under other than honorable conditions and reduced to the grade of Private E-1. b. Prior to approving the discharge the commander stated the applicant was given the opportunity to consult with counsel and to request consideration of his case by a board of officers but his decision to waive both was voluntary and made with full knowledge of the potential consequences. 11. The applicant underwent and mental status evaluation and was found to have the mental capacity to understand and participate in the proceedings; was mentally responsible; and he met the retention requirements of AR 40-501 (Medical Services – Standards of Medical Fitness, Chapter 3 (Retention Medical Fitness Standards). The applicant indicated that he did not desire a separation medical examination. 12. On 15 June 1984, the applicant was discharged accordingly. His service was characterized as UOTHC. He completed 5 years, 1 month, and 6 days of net active service this period (2 years, 5 months, and 2 days since his last reenlistment). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized: * Army Service Ribbon * Humanitarian Service Medal * M16 Rifle Expert Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon 13. The applicant provides: a. Self-Authored Letter, dated 3 October 2019, which states he made an inquiry to the ARBA regarding the status of his application. b. Army Review Boards Agency, Congressional Liaison and Inquiries Letter, dated 21 October 2019, states the office is aware that the case had taken a long time to complete and further explained the steps that were taken to impact the processing timeline of cases. Unfortunately, they were unable to provide an exact date for completion. 14. The applicant states he is requesting an upgrade in order to receive medical and other benefits. He is homeless and disabled with cancer. He was young and dumb while serving in the military and made many mistakes. His record shows his misconduct started when he was 23 years old, approximately 11 months and 27 days after reporting to his second duty assignment where over a 2-month period, he was found to have been driving while drunk, being in possession of and using marijuana, and failing to report an act a vandalism. As a result, the immediate commander initiated his separation. He served 2 years, 5 months, and 2 days of his 6-year contractual obligation. a. In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. b. AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, was a separation for commission of a serious offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. c. Per the Manual for Courts-Martial, provides the maximum punishment for Article 111 – operating a vehicle while drunk; Article 134 – possession or use of marijuana and misprision of a felony authorized a punitive discharge. 15. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct, but did determine that the character of service was too harsh. The applicant provided no additional evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was unjust and that a correction was necessary. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. 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 the DD Form 214 for the period of service ending 15 June 1984 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 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 an Honorable Discharge upgrade or a Personal Appearance before the Board. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 15 June 1984, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): Missile Qualification Badge * Item 18 (Remarks): * "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" * "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790510 UNTIL 820113" 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 Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’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 have been clearly inappropriate. 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 14 of the regulation dealt with separation for various types of misconduct. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 3. The Manual for Courts-Martial, United States, 1969 (Revised Edition) Table of Maximum Punishments showed a bad conduct discharge for Article 111 – operating a vehicle while drunk and a dishonorable discharge for Article 134 – possession or use of marijuana and misprision of a felony. 4. 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. a. 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 on the basis of 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. b. 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. 5. 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 has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001539 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180001539 8 ABCMR Record of Proceedings (cont) AR20180001539 6