ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 July 2019 DOCKET NUMBER: AR20180008543 APPLICANT REQUESTS: reconsideration to his previous request for an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Character Reference from MB * Character Reference from CT * Character Reference from FW FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100018164 on 20 January 2011. 2. The applicant states he was found guilty by association for an act that he took no part in. He was given the choice between going to Fort Leavenworth or to be discharged. This was a no win situation, so he elected to take the discharge. 3. The applicant provides: a. A self-authored statement describing the incident and the affect it had on his life. He has since corrected his juvenile behavior and apologizes for his deficiencies. Through his experiences with the trials of life, he knows his previous behavior was a mistake, which has followed and haunted him for many years. He has since changed and have learned a lot about the ups and downs of life. An upgrade of discharge would help him in his later years to resolve a mistake he made a long time ago. b. A character reference from MB which states she’s known the applicant from high school, during those discover years when they were considered unruly to some extent. Although they’ve lost contact from time to time, they always manage to reconnect and catch up. The applicant is someone who has always been happy for the chances he was given to become the adult that could help others whenever physically possible. c. A character reference from CT which states the applicant is a family friend whom she has known for over 3 decades. The applicant and her brother were inseparable and they joined the military together under the buddy plan. She and the applicant remain good friends to this day and she have known him to be a thoughtful and dependable person. She was also impressed with his successful completion of Culinary School and how he managed his own catering business. In recent times, the applicant has truly proven to be, a very loyal, respectful and enduring friend to her family, especially during her brother's illness, many hospitalizations, and death. His support and generosity during this difficult time was invaluable and greatly appreciated. d. A character reference from FW which states the applicant is a very respectful young man who serves in the Men’s Sunday School Class and anywhere else that is needed in the church. 4. The applicant enlisted in the Regular Army on 10 July 1979. 5. According to his DD Form 458 (Charge Sheet), dated 19 November 1980, court- martial charges were preferred against the applicant for: * one specification of wrongfully possessing marijuana on 15 October 1980 * one specification of wrongfully transferring marijuana on 15 October 1980 * one specification of wrongfully selling marijuana on 15 October 1980 6. On 29 December 1980, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of a discharge under other than honorable conditions, if the request is approved and of the procedures and rights available to him. a. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf b. His chain of command recommended that he be discharged for the good of the service under the provisions of AR 635-200, Chapter 10, and receive an under other than honorable conditions discharge. c. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, Chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduced to Private/E-1. d. He was discharged on 20 January 1981. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court martial with a characterization of service of under other than honorable conditions. It also shows he completed 1 year, 6 months and 11 days of net active service with no lost time. He was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar (M- 16) 7. On 12 November 1982, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing, but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 8. By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts- Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. 6. 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 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 warranted. Based upon the demonstrated remose for the misconduct shown by the applicant, in addition to all of the misconduct involved in the separation action occurring on a single day, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 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. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200, in effect at the time, sets for the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable) provided that 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) provided that 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. When a member’s service is characterized as general, except when discharged by reason of misconduct, unfitness, unsuitability, homosexuality, or security, the specific basis for such separation will be included in the individual’s military personnel record. c. Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against him, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any state in the processing of charges until final action or the case by the court-martial convening authority. An individual who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the Service. 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. 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. ABCMR Record of Proceedings (cont) AR20180008543 2 1