ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20180008445 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to a general discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: he provides 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 is requesting an upgrade because he believes he did not receive proper representation. He did not understand that he was going to lose benefits or he would have chosen the court-martial. He also told them that the drugs were not his and he was holding them for Sergeant (SGT) X_, who had returned from Vietnam with a heroin habit. Those guys who fought in Vietnam were like his heroes, so when SGT X_ asked him to hold it, he could not say no. He served over 3 years and he hopes the Board will take everything into consideration. 3. Review of the applicant’s service record shows: a. He enlisted in the Regular Army on 20 February 1974. He held military occupational specialty 11E (Armor Crewman). b. On 23 August 1974, he accepted nonjudicial punishment (NJP) for being absent without leave from 19 July to 20 August 1974. c. He served in Germany from 4 April to 18 September 1975. He was promoted to E-4 on 4 November 1975. d. He accepted NJP on/for: * 15 September 1976 – disobeying a lawful order issued by a superior commissioned officer and being found sleep on his post * 8 December 1976 – failing to go to his guard duty * 23 February 1977- failing to go to morning formation; his punishment included a reduction to pay grade E-3; his appeal was denied on 24 February 1977 e. He again served in Germany from 1 March to 31 June 1977. f. On 12 April 1977, the applicant’s division commander stated he had received the charges and allied papers in the applicant’s case. It was his opinion that the specifications alleged an offense under the Uniform Code of Military Justice, each offense was supported by the evidence indicated in the allied papers, and trial by court-marital was warranted. The commander recommended trial by special court-martial empowered to adjudge a bad conduct discharge. g. A DA Form 458 (Charge Sheet), dated 26 April 1977, shows court-martial charges were preferred against the applicant for: * one specification of wrongfully possessing 0.0374 grams of heroin * three specifications of willfully disobeying a lawful order from his superior noncommissioned officer * one specification of failing to go to his appointed place of duty h. On 6 May 1977, after consulting with legal counsel, he was advised of the basis of contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice. Following this consult, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * if his request for discharge was accepted, he may be discharged under other than honorable conditions and the possible effects of issuance of an under other than honorable conditions discharge * he may be deprived of many or all Army benefits * he may be deprived of his rights and benefits as a veteran under both Federal and State law * he may expect to encounter substantial prejudice in civilian life * he waived his rights and elected not to submit a statement in his own behalf i. On 11 May 1977, the applicant’s battalion commander recommended disapproval of the applicant’s chapter 10 request. The commander stated that he had interviewed the applicant and based on that interview and the applicant’s past performance, he concurred with the applicant’s company commander’s recommendation that the applicant be court-martialed. j. In May 1977, the applicant’s division commander recommended approval of the applicant’s request. The commander stated that the applicant was charged with possession of heroin. He believed the best interests of the service would be to approve the chapter 10 under less than honorable conditions. k. On 23 May 1977, the separation authority approved the applicant’s discharge under the provisions of chapter 10, AR 635-200, and directed the issuance of an Under Other Than Honorable Discharge Certificate and reduction to pay grade E-1. l. Accordingly, he was discharged from active duty on 6 June 1977. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 10, AR 635-200, with his service was characterized as under other than honorable conditions. He completed 3 years, 2 months, and 16 days of active service and 31 days of time lost. m. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 4. By regulation (AR 635-200), an individual who has committed an offense or offenses, the punishment for which, includes an undesirable discharge, may submit a request for discharge in lieu of trial by court-martial. 5. 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 offenses 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), in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier’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 be clearly inappropriate. b. Paragraph 3-7b (General Discharge) – 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. c. Chapter 10 – an individual who had committed an offense or offenses, the punishment for which included an undesirable discharge, could submit a request for discharge for the good of the service. A discharge under other than honorable conditions normally was appropriate for a Soldier who was discharged for the good of the service; however, the separation authority could direct a General Discharge Certificate, if such was merited by the Soldier’s overall record during the current enlistment. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008445 4 1