IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20180013809 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces) * DD Form 214 (Certification Release of Discharge) * Personal Statement * Letters of Support 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 that everything his lieutenant and two corrupt Criminal Investigation Division (CID) agents did to him was illegal. He feels that his military medical records are missing because the blood test for his drug abuse would be part of his records and is missing. 3. On 27 November 1984, the applicant entered the Regular Army on a 3 year contract. He attended both Basic and Advanced Individual Training and was awarded the MOS 54C (Smoke Operation Specialist. He was ultimately assigned to Fort Irwin, California. 4. On 11 June 1986, the applicant was charged and found guilty by a summary court- martial for: * On 5 March, 14 April, and 28 April 1986 for Failure to Report * On 16 April 1986 for disrespect toward a NCO * On 21 May 1986 for wrongfully possessing a controlled substance (methamphetamine) 5. On 20 June 1986, the applicant was reduced to Private E1, forfeiture of $558.00 per month for one month and confined for 30 days. 6. On 31 July 1986, the applicant’s immediate commander notified him that he was being recommended for separation in accordance with AR 635-200, Chapter 14 for drug abuse. The applicant acknowledged the command’s intent to discharge him, acknowledged his available rights and spoke with legal counsel. He was advised his available rights and the basis for discharge under the provision of Army Regulation 635- 200, chapter 14. He requested a personal appearance consideration by an administrative separation board. 7. On 18 September 1986, an Administrative Separation Board convened and recommended the applicant be discharged from the Army and furnished an UOTHC discharge certificate. 8. On 28 November 1986, the appropriate separation authority approved the separation issuing the applicant a UOTHC and waived rehabilitation according to AR 635-200 Para 1-18. 9. AR 635-200, Chapter 14 separates members who demonstrate or display patterns of misconduct, as evidenced by his multiple instances of misconduct and counseling. Paragraph 1-18 states, Commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. Waiving rehabilitation applies when it would not be in the best interest of the Army as it would not product a quality Soldier. 10. On 4 December 1986, he was discharged accordingly, his service was characterized as UOTHC for misconduct drug abuse. His DD 214 shows he completed 1 year, 11 months and 12 days of total active service and was awarded or authorized: * Army Service Ribbon * Sharpshooter M16 rifle * Expert Hand Grenade 11. The applicant provides a personal statement as well as a letter of support that provides many contentions in respect to the Board of Officer’s determination; however, Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases based on the evidence of record. It is not an investigative body. 12. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 13. His records shows his misconduct started approximately 11 months after he reported to his first duty assignment where over a 3 month period he failed to report 3 times, disrespected a NCO and wrongfully possessed a controlled substance. As a result, the immediate commander initiated his separation. 14. 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: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct. The applicant continued a pattern of misconduct after the unit attempted to rehabilitate the applicant by transferring the applicant to another unit. The Board agreed that the applicant’s discharge characterization is appropriate for 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, U.S. Code, 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. d. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of drug abuse e. Paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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 on the basis of equity, injustice, or clemency grounds, Boards 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) AR20180013809 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013809 6 ABCMR Record of Proceedings (cont) AR20180013809 5