ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 August 2019 DOCKET NUMBER: AR20180014607 APPLICANT REQUESTS: Correction of his DD Form 214 (Report of Separation from Active Duty), for the period ending 2 May 1979, to show he was honorably discharged. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 24 October 2018, with self-authored statement * DD Form 214, for the period ending 2 May 1979 * 201 pages of Department of Veterans Affairs (VA) medical documents, printed on 4 April 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 the Army took him from his home as a teenager. He became addicted to opioids as a result of training/service. The Army allowed the addiction to go on, deployed him, and then threw him out instead of giving him a medical discharge. He got into criminal trouble in Germany after he became addicted. He never took drugs prior to his military service. The military was unjust in not treating him properly for the addiction caused by his service. He has been diagnosed with post-traumatic stress disorder (PTSD), anxiety, and depression as a result of his military service. 3. In a separate, self-authored statement, the applicant notes: * he was a teenager, too young to be considered an adult on 23 November 1976, when he volunteered and joined the Army * he was a spiritual person in the * he went to training to learn to kill other human beings, directly against his learnings in life * he became an opioid addict and was put into a drug-program in West Germany, which he did not complete * he acted out and got into criminal trouble, he was thrown out of the Army * he is requesting an upgrade to under honorable conditions, due to medical conditions * he was deployed and served over three years active duty 4. The applicant enlisted in the Regular Army on 5 April 1976, at the age of 18. 5. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 1 July 1976, for using disrespectful language towards a noncommissioned officer (NCO), on or about 29 June 1976 * on 5 October 1976, for being drunk and disorderly, on or about 30 September 1976 * on 16 March 1977, for possessing marijuana, on or about 13 January 1977 * on 22 June 1977, for striking a military policemen and for being drunk and disorderly in uniform in a public place, on or about 19 April 1977 * on 12 April 1978, for leaving his appointed place of duty, on or about 15 March 1978 6. A memorandum from the applicant’s commander, dated 24 January 1979, indicates the applicant’s promotions had been revoked as he was in a non-promotable status due to his previous Article 15s; thus, he was not eligible for promotion. 7. A DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag), dated 3 March 1979, shows the applicant was pending a general court-martial for possession of heroin and fleeing the scene of an accident. The relevant DD Form 458 (Charge Sheet) is not available for review with this case. 8. A memorandum for the commanding general, dated 1 May 1979, subject: Void Enlistment - [Applicant], states in pertinent part: a. At an Article 39a session on 17 April 1979, the applicant, through his defense counsel, moved for dismissal of the charges pending against him contending that the court lacked in personam jurisdiction. He testified under oath that on the DD Form 1966 (Application for Enlistment), he deliberately omitted information regarding drug use and arrest records. He testified that this was done at the direction of his recruiter. b. At a subsequent Article 39a session held on 28 April 1979, the Government presented testimony from the recruiting team who enlisted the applicant. The recruiters stated that they had never advised an applicant to deliberately conceal information. However, the Government was unable to produce the applicant’s approved waiver that was necessary for his enlistment under the Regular Army Enlistment Program. Based upon this absence of documentary evidence, the military judge ruled that the applicant’s enlistment was void; therefore, the court lacked jurisdiction. c. It was recommended the applicant be separated from the service because of his voided enlistment. 9. The separation authority approved the recommended separation action on 1 May 1979, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-11, for lack of jurisdiction. 10. The applicant was discharged on 2 May 1979, under the provisions of Army Regulation 635-200, paragraph 5-11, Section IV. The DD Form 214 he was issued shows his service was not characterized. 11. In the processing of this case, an advisory opinion was obtained on 5 August 2019 from the Army Review Boards Agency Medical Advisor/Psychologist. a. The advisory official opined: * the applicant did not have a boardable behavioral health condition at the time of his discharge * the applicant did not have a condition that failed medical retention standards * the applicant’s enlistment was voided and he did not receive a discharge based on his misconduct b. The applicant was provided a copy of this advisory opinion to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 12. The Board should consider the applicant's overall record and the statement he provided in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the conclusions of the advising official who stated the applicant had no condition that failed medical retention standards and that he did not receive a discharge as a result of misconduct. The Board found that applicant failed to divulge drug use and arrest records prior to enlistment. 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. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. X CHAIRPERSON 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, 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 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. Paragraph 5-11, Section IV, Lack of Jurisdiction, then in effect, provides that the general court-martial convening authority will take appropriate action to direct the discharge, release from active military service, or release from military control of the individual concerned. This authority will not be delegated. 3. 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.