ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180003526 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable or under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 served in Vietnam from December 1970 to July of 1971. He served with the 173rd Airborne Division where he requested an additional tour, which was approved by his commanding officer. He ended up going home with his unit in July of that year. After returning home with his unit, he was released in October of that year with the undesirable discharge. He feel as though the undesirable discharge is unjust, and his discharge should be upgraded to honorable based upon his performance while in the military. He made specialist (E-4) in 9 months and proved to be an exemplary Soldier, graduating at the top of his class in US Army Rigger School. Please consider his military record/performance while considering to change his discharge. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 11 August 1969. b. On 22 November 1970, he was assigned to Vietnam. c. On 3 July 1971, an investigation was completed by Army Criminal Investigation Command (CID) reporting the Soldier mailed a package containing 50 small plastic containers of heroin to his brother on Ohio, which was received on 18 June 1971 by his brother and another person. He wrote a statement admitting to sending 50 vials of heroin to his brother and about 13 packs of marijuana cigarettes. d. On 20 September 1971, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet), indicates he was charged with specification one wrongfully have in his possession 0.882 grams, more or less of heroin, specification two wrongfully and knowingly deposited in the United States mail, on or about 28 May 1971 in the Republic of Vietnam a package containing 0.882 grams more or less of heroin and specification three wrongfully import into the customs territory of the United States, 0.882 grams more or less of a habit forming drug heroin. e. On 20 September 1971, the applicant was notified by his leadership’s intent to separate him under the provisions of Army Regulation (AR) 635-200 chapter 10 (Personnel Separations – Enlisted Personnel) recommend trail by general court-martial f. On 29 September 1971, he was advised by his consulting counsel of the basis for the contemplated action to discharge him for the good of the service under the provisions of AR 635-200, paragraph 10-5, its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He waived consideration of his case by a board of officers and personal appearance before a board of officers. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being considered for service characterization under other than honorable conditions * understood that he could expect to encounter substantial prejudice in civilian life if a discharge under other than honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life g. On 20 October 1971, his chain of command recommended approval with the issuance of an Undesirable Discharge Certificate. h. On 27 October 1971, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10-2, AR 635-200 and ordered the applicant furnished an Undesirable Discharge Certificate. i. He was discharged from the Army on 29 October 1971. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharges) show he was discharged under the provisions of chapter 10 of AR 635-200 with under other than honorable conditions characterization of service. He completed 2 years, 2 months, and 19 days of active service. 4. On 22 September 1977, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, has determined that he were properly discharged. Accordingly, the Secretary of the Army has directed that he be advised that his request for a change in the type and nature of his discharge, under the "DOD Discharge Review Program (Special)", has been denied. 5. By regulation, an individual 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. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged 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 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 offense of a criminal nature, 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 1-13a 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. b. Paragraph 1-13b states 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. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. 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) AR20180003526 4 1