BOARD DATE: 10 December 2019 DOCKET NUMBER: AR20180005888 APPLICANT REQUESTS: An upgrade of his characterization of service from under other than honorable conditions to honorable or general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of a 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 was acquitted of all allegations against him. After 6 months of being discharged, he received paper work showing he was eligible for reenlistment and he was promised his discharge would be upgraded. It has not been upgraded and he needs his benefits. Additionally, he contends that: * He has a post-traumatic stress diagnosis (PTSD) diagnosis from Doctor Ran Zedek, a World renowned psychiatrist. He lists the psychiatrist’s phone number and address * He attached 5 pages (of evidence), however, no evidence was attached * A records review, in 1980, shows his eligibility for reenlistment * His family has a long history of service back to 1502 in Scotland and in America back as far as 1623 3. The applicant enlisted in the Regular Army on 7 June 1977, for 3 years. He held military occupational specialty 11B (Light Weapons Infantryman). He was assigned to Germany from 1 October 1977 through 5 June 1980. 4. He accepted nonjudicial punishment (under the provisions of Article 15, Uniform Code of Military Justice), for the following reasons on: a. On 31 July 1978, for failing to go to his appointed place of duty at the time prescribed on or about 17, 18, and 21 July 1978. His punishment consisted of reduction from pay grade E-3 to E-2, a forfeiture of pay, extra duty, and restriction. b. On 23 October 1978, for failing to go to his appointed place of duty at the time prescribed on or about 4, and 8 August 1978, and from 15 to 18 August 1978 with intent to avoid a field exercise. His punishment consisted of a forfeiture of pay and 30 days in the Correctional Custody Facility. c. On 23 January 1979, for failing to go to his appointed place of duty at the time prescribed on or about 10 January 1979. His punishment consisted of reduction from pay grade E-2 to E-1, a forfeiture of pay, and extra duty. d. On 9 April 1979, He accepted NJP, for absenting himself from his unit from 2 to 3 April 1979. His punishment consisted of a forfeiture of pay (suspended 60 days) and 14 days of restriction. 5. The applicants Official Military Personnel File contains four Chronical Records of Medical Care showing: a. On 12 February 1979, he was brought to the emergency room by a noncommissioned officer from his unit, stating he may have had an overdose of drugs that morning. The applicant stated he had taken five “mandriex.” He was slightly disoriented, he was staggering and had multiple needle marks on his arms. He stated he used to be heavily into drugs. After a long discussion he decided to turn himself into “CDAAC,” [in effect, believed to be Alcohol Drug Abuse Prevention Control Program (ADAPCP)) and mental hygiene. He stated he only started using drugs 1 year ago and he was tired of it now. The applicant was advised to report to mental at that location in the morning for further evaluation. He turned in two syringes. b. On 13 February 1979, he returned and appears to have been evaluated for heroin. c. On 14 February 1979, reported to the 2nd Battalion, 87th (2/87th) Infantry, 8th Infantry Division Aide Station and he requested to be checked for hepatitis, he stated he had last used Sunday night, his eyes were not yellow, and needle marks were on both forearms. He was sent for further evaluation and necessary tests on 15 February 1979. d. On 15 February 1979, he returned to the 2/87th Aide Station and returned to [ADAPCP]. e. On 19 March 1979, he was sent to the dispensary to rule out the possible use of drugs. The request was for evaluation for heroin use. He stated he was up last night and used, “ETOH” and missed call, he denied using drugs. He was suffering from mild fatigue due to binge drinking last night. He was returned to duty. f. On 6 April 1979, he reported to the 2/87th Aide Station stating he had been feeling dizzy since last night. He fell striking his head on a pipe with no loss of consciousness. His pupils were equal and reactive. He was prescribed Tylenol. 6. Six DA Forms 4465 (ADAPCP Military Client Intake and Follow-Up Record), showing he was command directed for treatment from February through September 1979, in a nonresident status and he received individual counseling therapy. On 5 September 1979, his reporting requirement was completed. His commander determined his conduct and efficiency were unsatisfactory. His counselors opined his progress was fair. He was not recommended for further treatment at the Department of Veterans Affairs. 7. A DA Form 268 (Report of Suspension of Favorable Personnel Action), dated 7 May 1979, showing the applicant was being investigated for possession and use of heroin and for possession of drug paraphernalia. Possible court-martial charges may be preferred upon completion of the investigation. No disposition of this investigation is available. 8. A final Criminal Investigation Command (CID) Report of Investigation, dated 30 July 1979, shows a totally different investigation disclosed the applicant wrote 10 checks totaling $1,061.01, for which he did not have sufficient funds at various AAFES-Europe Facilities. 9. On 7 August 1979, following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He declined to submit statements in his own behalf. The applicant’s charge sheet is not available for review with his case. However, he would have been advised of the specific charges and basis for the contemplated trial by court-martial, the possible effects of a request for discharge, and of the procedures and rights available to him. 10. On 16 August 1979, his immediate and intermediate commanders recommended approval of his request for discharge under other than honorable conditions. On 20 August 1979, his brigade commander recommend approval with a discharge under other than honorable conditions. 11. On 24 August 1979, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, with a discharge under other than honorable conditions, and reduction to the lowest enlisted grade. 12. Orders 216-143, U.S. Army Regional Personnel Center, Wiesbaden, Germany, dated 28 August 1979, reassigned the applicant to the transfer activity for separation processing in accordance with chapter 10, AR 635-200. 13. On 5 September 1979, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 2 months, and 24 days of total active service with lost time on 8 August 1978, lost time from 27 through 29 November 1978, and lost time on 2 March 1979. His awards are listed as the Expert Marksmanship Qualification Badge Hand Grenade and the Sharpshooter Marksmanship Qualification Badge Rifle (M-16). 14. On 15 December 1981, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB unanimously voted to deny him a change in the character of service and the reason for discharge. At that time he alleged his discharge was inequitable because he was never convicted of anything. However, he was not convicted of anything because he voluntarily requested discharge to avoid a felony conviction. 15. AR 635-200 set forth the basic authority for the administrative separation of enlisted personnel. Chapter 10 provides that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. 16. Even though the applicant indicated he had provided evidence with his application, no evidence was provided. There is also nothing showing that he was diagnosed with PTSD or that he was told his discharge would be upgraded or that he was eligible for reenlistment. On 15 December 1981, the ADRB denied his request for discharge. 17. In regards to the applicant requesting 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, his service record, and his statements in light of the published 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, his ADAPCP experience, the charges against him, his request for discharge and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no 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 not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): NA 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. AR 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. b. 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. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. 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 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180005888 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180005888 8 ABCMR Record of Proceedings (cont) AR20180005888 6