BOARD DATE: 31 January 2020 DOCKET NUMBER: AR20180007892 APPLICANT REQUESTS: The applicant requests, in effect, upgrade of his under other than honorable conditions discharge to honorable. 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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, someone told him his character of service would be upgraded to honorable, but this never happened; he believes his discharge was not amended due to an oversight. 3. The applicant's service records show: a. After obtaining his parents' consent, the applicant enlisted into the Regular Army on 4 October 1974. Following the completion of initial training, orders assigned the applicant to Germany; he arrived in Germany on 14 February 1975. b. Effective 18 May 1976, his chain of command promoted him to specialist four (SP4)/E-4. Permanent Orders (PO), dated 6 October 1976, awarded him the Army Good Conduct Medal (1st Award) for the period 4 October 1974 through 3 October 1976. On 16 December 1976, the applicant was honorably discharged so he could immediately reenlist; he reenlisted on 17 December 1976. c. In April, and again in May 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ): * 10 April 1978 – failing to obey a sergeant's order to take out some trash cans; punishment included a suspended forfeiture, which was vacated, on or about 20 April 1978, because the applicant broke restriction * 5 May 1978 – breaking restriction d. On 5 August 1978, CID (U.S. Army Criminal Investigation Command) apprehended the applicant after the applicant attempted to sell a CID special agent 841.15 grams (equivalent to about 1.85 pounds) of marijuana while on a military installation. e. On 14 August 1978, the applicant's commander preferred court-martial charges against him for attempting to sell marijuana on a military base; on 9 September 1978, the commander preferred the additional charge of possessing about 841 grams of marijuana. f. On 16 October 1978, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He elected to make the following statement in his own behalf: (1) The applicant affirmed his age and indicated his last 2 years of active duty service had not been good because he had gotten into a lot of trouble. He briefly described events prior to and following his first enlistment. (2) He stated he believed it would be best for him to get out of the Army; he already had a civilian job waiting for him and did not want to be rehabilitated by the Army. g. On 6 November 1978, the separation authority approved the applicant's separation request and directed his under other than honorable conditions discharge; in addition, the separation authority directed the applicant's reduction in rank from SP4 to private/E-1. On 4 December 1978, the applicant was discharged accordingly; his DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 11 months, and 18 days of his reenlistment contract. He was awarded or authorized a marksmanship qualification badge. 4. The applicant asserts, in effect, his character of service was supposed to have been upgraded to honorable; the Army has never had a policy of automatically upgrading characters of service. For consideration of an upgrade, applicants are required to submit applications, within statutory time limits, to the Army Discharge Review Board or the ABCMR. 5. During his active duty service, the applicant violated the UCMJ by possessing and attempting to sell marijuana on a military installation. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. 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: The Board carefully considered the applicant's request, 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, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed a punitive discharge was an available punishment for convictions of Articles 80 (Attempts (maximum punishment same as for crime attempted)), and 134 (General Article – Wrongful Possession, Sale, or Transfer of Marijuana into a military base), UCMJ. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, stated in paragraph 7-64c (Reasons for Reduction – Approved for Discharge from Service Under Other Than Honorable Conditions), Soldiers being separated with an under other than honorable conditions discharge were to be reduced to the lowest enlisted grade. 5. 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 on the basis of 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) AR20180007892 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180007892 5 ABCMR Record of Proceedings (cont) AR20180007892 4