ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20180005705 APPLICANT REQUESTS: upgrade of his under other than honorable discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement 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, in effect, he was discharged for the good of the Army, with an under other than honorable discharge. He would like to apply for Department of Veterans Affairs (DVA) disability compensation and pension, but would first need to have his discharge changed from other than honorable to honorable. He states he’s been through countless programs to remain free from addiction and is a model citizen in his community in Panama City, Panama. He adds that he made a mistake in his life while in the military and would like to correct the past. He states he is a changed person and a humble servant within his community. He has participated in a drug and alcohol prevention program, realizes what he did as a young man was wrong, and wishes he could take it back. The applicant shares he has become a role model and works with children within his community. The applicant states he has learned from his mistakes and is asking the Board to assist him in correcting his present situation. He states he’s worked for the DVA for 30 years since he left the military and believes he’s very good at his job with no problems. He has a great deal of trust, confidence and respect from his fellow employees. 3. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 10 September 1970. He was honorably released from active duty on 30 April 1972. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). b. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that credited him with 1 year, 7 months, and 16 days of active service. c. He was discharged from the USAR on 4 December 1972 and enlisted in the Army National Guard (ARNG) on 5 December 1972. d. He was discharged from the ARNG on 4 December 1972 and reverted back to the USAR to complete his remaining military service obligations. He was issued an NGB Form 22 (Report of Separation and Record of Service) that credited him with 1 year of ARNG service. e. He was ultimately honorably discharged from the USAR on 9 September 1976. f. He enlisted in the ARNG on 16 March 1978 and he was discharged from the ARNG on 16 March 1979. He was issued an NGB Form 22 that credited him with 1 year of ARNG service. g. He enlisted in the USAR on 1 March 1979. He was discharged from the USAR and subsequently enlisted in the Regular Army on 19 March 1982. h. He served in Germany beginning on 25 August 1982. i. The applicant’s record is void of a DD Form 458 (Charge Sheet). However, on 4 September 1984, the applicant consulted with legal counsel in reference to a charge in violation of Article 112a (substance abuse related charge). He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was accepted he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf * he elected not to submit any statements in his behalf j. On 5 September 1984, his immediate and intermediate commanders recommended approval of the discharge request with the issuance of an under other than honorable conditions characterization of service. k. The separation authority approved the applicant's request for discharge and ordered him discharged under the provisions of AR 635-200, chapter 10, for the good of the service, and issued an Under Other Than Honorable Conditions Discharge Certificate. l. On 5 October 1984, he accepted nonjudicial punishment under the provisions of Article 15 for wrongfully possessing marijuana in the hashish form and possessing two roach clips used for the introduction of controlled substances into the human body. His punishment consisted, in part of a reduction in rank to private/E-2. m. The applicant was discharged from active service on 12 October 1984 under the provisions of AR 635-200, chapter 10, for the good of the service-in lieu of court martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank of private/E-1 and his service was characterized as under other than honorable conditions. He completed 5 years, 6 months, and 20 days of active service during this period and had no lost time. His DD Form 214 also shows he was awarded the following: * Army Good Conduct Medal (2nd Award) * Army Service Ribbon * Overseas Service Ribbon * Noncommissioned Officer Professional Development Ribbon * Marksman Qualification Badge with .45 Caliber Pistol Bar 5. By regulation (AR 635-200), 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, a discharge under other than honorable conditions is normally considered appropriate. 6. The Board should consider the applicant’s submission 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 drug offense and a lack of corroborating evidence to the applicant’s statement showing he has completed drug rehabilitation programs, 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 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for Item 18 (Remarks) to Soldiers who are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). 3. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. 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. c. Chapter 10 of that regulation provides, in pertinent part, that 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, a discharge under other than honorable conditions is normally considered appropriate. 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. 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) AR20180005705 4 1