ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180003213 APPLICANT REQUESTS: * upgrade of his under other than honorable conditions discharge to honorable * reinstatement of his rank/grade of sergeant * addition of his all his medals an certificates * removal of any misdemeanors and/or felonies from his records APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter and card from the Department of Veterans Affairs (VA) 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 "it was an easy way for JAG [Judge Advocate General] to charge him with something he did not do because of his rank. The VA overruled any negative remarks and considers his service honorable. 3. Review of the applicant's service records shows: a. He enlisted in the Louisiana Army National Guard (LAARNG) on 9 March 1988 and he was honorably discharged from the LAARNG on 2 April 1990 to enlist in the Regular Army (RA). b. He enlisted in the RA on 3 April 1990. He was assigned to the 13th Engineer Battalion at Fort Ord, CA. He was promoted to SGT/E-5 on 1 November 1990. c. On or about 3 June 1991, the applicant submitted a urine sample during a routine urinalysis and his sample tested positive for illegal drugs (cocaine). d. On 15 July 1991, court-martial charges were preferred against him for wrongfully using cocaine detected through a biochemical testing of a urine sample. e. The chain of command at the company, battalion, and brigade levels recommended a special court-martial. On 30 July 1991, the Commanding General, 9th Infantry Division, Fort Ord ordered a special court-martial, empowered to adjudge a bad conduct discharge, convene. f. On 1 August 1991, the applicant consulted with legal counsel was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * the maximum punishment * he was guilty of the charge against him or of a lesser included offense which authorized a punitive discharge * he was not coerced by anyone and he was making this request on his own free will * he did not desire further rehabilitation or a desire to perform further military service * if his discharge was approved, he may be discharged under conditions other than honorable and the effects of the discharge * 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 g. The applicant submitted a statement wherein he indicated that he had enjoyed serving in the Army and had performed his duties to the best of his ability. He further indicated that he was in shock when the test results came back positive and has been researching various sources to find out how it got into his system. He requested an honorable discharge. h. The immediate commander recommended approval with an under other than honorable conditions discharge. The intermediate and senior commanders recommended a court-martial i. On 4 September 1991, following a legal review for legal sufficiency, the separation authority approved the applicant’s request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. j. On 6 September 1991, Headquarters, 7th Infantry Division, Fort Order, published Orders 168-333 reducing him to E-1 effective 4 September 1991 and ordering his discharge effective 16 September 1991. k. On 16 September 1991, the applicant was discharged from active duty under the provision of AR 635-200, chapter 10. His DD Form 214 (Certificate of Releaser or Discharge from Active Duty) shows he completed 1 year, 5 months, and 14 days of active service. It also shows in: * Block 4a (Grade, rate or Rank) and 4b (Pay Grade) private and E-1 respectively * Block 12h (Effective Date of Pay Grade), 4 September 1991 * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): * Army Achievement Medal (2nd Award) * Army Commendation Medal * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Driver/Mechanic Badge with Driver -S 5. By regulation (AR 635-200), 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. Also by regulation (AR 635-200), when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. 7. 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. 8. By regulation (AR 600-8-22) personal awards and decorations require formal recommendation, approval through the chain of command, and announcement in orders. 9. With respect to removing any misdemeanors and/or felonies from his records, it seems he is requesting the removal of his name from the titling block of a U.S. Army Criminal Investigation Command investigation that led to his name entered into the NCIC. If that is the case, his request is premature. By regulation (AR 15-185), the Board will not consider an application if it determines that an applicant has not exhausted all administrative remedies available to him/her. There is no evidence that the applicant has petitioned the U.S. Army Criminal Investigation Command, Russell Knox Building, 27130 Telegraph Road, Quantico, VA 22134-2253, and were denied relief. 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. The applicant was facing court-martial for a criminal offense in which he voluntarily requested a discharge in lieu of court-martial. His request for separation was approved and he was appropriately reduced to the lowest rank. Based upon the short term of honorable service completed prior to the drug offense, 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. The Board determined there were no additional awards to add to his separation document. His request for relief in reference to the removal of derogatory information is address in paragraph 9 above. 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) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides for a member who has committed an offense or offenses 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, an under other than honorable conditions discharge was considered appropriate at the time. a. Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. c. Paragraph 3-7b provides that 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. 3. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. c. Relief is generally more appropriate for nonviolent offenses than for violent offenses. d. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: * An applicant's candor * Severity of misconduct * Length of time since misconduct * Acceptance of responsibility, remorse, or atonement for misconduct * The degree to which the requested relief is necessary for the applicant * Character and reputation of applicant * Meritorious service in government or other endeavors * Evidence of rehabilitation * Availability of other remedies * Job history * Whether misconduct may have been youthful indiscretion * Character references 5. Department of Defense Instruction 5505.7 contains the authority and criteria for titling decisions. It states, in pertinent part, that titling only requires credible information that an offense may have been committed. The primary purpose for titling an individual as the subject of a criminal report of investigation is to ensure that information contained in the report can be retrieved at some future point in time, for law enforcement and security purposes. This is strictly an administrative function. Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the procedure to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003213 5 1