ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180007122 APPLICANT REQUESTS: to upgrade her under other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Army Discharge Review Board Decision Memorandum 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 (ABCMR) 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 she was not guilty of the charges against her. She never brought any contraband (marijuana) to her job at the U.S. Army Hospital in Fort Stewart, GA. She knows she was made an example of because of her encounters which involved her friends with “military police.” She truly regrets those encounters. She spent six months in a cell in Akin, SC without any “out of cell” activities except to the emergency room and church. She thought she had a chance to complete her enlistment, so she spent that time with hope. 3. A review of the applicant’s service record shows: a. On 27 January 1975 she enlisted in the Regular Army. b. She accepted nonjudicial punishment on the following dates/for: * 10 July 1975, one specification of failing to go to her appointed place of duty; her punishment included forfeiture of $100 for one month and extra duty for 14 days * 14 July 1975, two specifications of failing to go to her appointed place of duty; her punishment included extra duty for 14 days * 28 July 1975, three specifications of failing to report and one specification of leaving her appointed place of duty; her punishment included forfeiture of $100 for one month and extra duty and restriction for 14 days * 14 October 1975, one specification of failing to obey a lawful order from a commissioned officer; her punishment included extra duty for 14 days c. On 13 November 1975 she was tried by special court-martial and found guilty for one specification of wrongful use of marijuana, two specifications of wrongfully possessing marijuana, and one specification of wrongfully transferring marijuana. A military judge sentenced her to be reduced to private (PVT)/E-1, forfeiture of $240 pay per month for six months, and to be confined at hard labor for six months. On 9 December 1975, the sentence was approved and ordered duly executed. d. On 14 November 1975, her immediate commander notified her of his recommendation for separation under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1)(3) (Unfitness) for displaying a pattern of conduct which has been of a discreditable nature with the military authority, habitual discipline problem since her assignment to the organization, and drug abuse. e. On an unknown date, the applicant, after consulting with legal counsel, submitted a conditional waiver whereby she waived consideration of her case by a board of officers if she receives a general discharge under honorable conditions instead of an undesirable discharge. This caused a delay in the separation proceedings as the packet was returned to the command. There is no provision in AR 635-200 for such conditional waiver and therefore must be considered null and void. f. On 19 January 1976, the applicant’s request to have her case considered by a board of officers was approved. The complete facts and circumstances surrounding the board of officers' proceedings are unavailable for the Board to review. g. On 13 February 1976, the immediate commander initiated discharge action in accordance with AR 635-200 for unfitness and drug abuse. She acknowledged receipt of proposed discharge action on 18 February 1976. h. On 13 February 1976, after consulting with legal counsel, she requested consideration of her case by a board of officers, personal appearance before this board of officers, and military counsel. She acknowledged: * she understood she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable condition is issued * she may be ineligible for many or all benefits as a veteran under both Federal and State laws if issued an undesirable discharge under conditions other than honorable * she understood she may expect to encounter substantial prejudice in civilian life if issued an undesirable discharge under conditions other than honorable i. On 18 June 1976, consistent with the chain of command recommendations, the separation authority approved the discharge for immediate separation. She would be discharged under the provisions of AR 635-200, paragraph 13-5a(1), with an undesirable conditions discharge. j. On 23 June 1976, she was discharged from active duty under the provisions of AR 635-200, paragraph 13-5a(1)(3), and issued a under other than honorable conditions discharge. Her DD Form 214 (Report of Separation from Active Duty) reflects that she completed 11 months and 25 days of active service with 152 days of lost time from 14 November 1975 to 13 April 1976. k. On 2 January 1981, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied her request for an upgrade of her discharge. l. On 5 January 2011, the ADRB reviewed her application and determined her request must be directed to the ABCMR for consideration. m. On 24 May 2018, a congressional letter of response was issued to the applicant explaining the administrative closure of her application (AR20100021099) on 5 January 2011 and the receipt of this current application. 4. By regulation, an individual is subject to separation when frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug abuse, a pattern for shirking, a patter showing dishonorable failure to pay just debts, a pattern showing dishonorable failure to contribute adequate support to dependents, or homosexual acts exist. 5. In reaching its determination, the Board can consider the applicant’s petition and her service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 13-5a (Unfitness) states an individual is subject to separation under this chapter when the following condition exists: (1) Paragraph 13-5a(1) states frequent incidents of a discreditable nature with civil or military authorities. (2) Paragraph 13-5a(3) states drug abuse through drug dependence, the unauthorized use, sale, possession, or transfer of any controlled substance, introduction onto any Army installation or other Government property under Army jurisdiction, or use or possession for one’s own use of a controlled substance. 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 the 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, 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 upgrade service characterization. ABCMR Record of Proceedings (cont) AR20180007122 4 1