ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 August 2019 DOCKET NUMBER: AR20180014939 APPLICANT REQUESTS: upgrade of his discharge under other than honorable conditions (UOTHC) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Privacy Act Release Form * Report of Medical History * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * civilian medical records in excess of 700 pages * Centers for Medicare and Medicaid Services booklets: “Your 2018 Personalized Medicare Plan Booklet for ZIP code 90731” 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: a. He is inquiring why his mental and physical status as well as his family hardship was never addressed. He was heavily medicated with mood altering drugs which left him incoherent and made him incapable of making any decisive decisions. He was without proper counseling and was basically left to his own devices to make rational decisions about his life, although he requested counseling. b. He wanted to be part of the few, the best the military could offer as an enlistee and requested assignment in the 101st Airborne Division after Advanced Individual Training (AIT). That alone should have given him red warning flags that something was not right. Whether something was out of place would not be for him to say, but for an analyst or psychiatrist, whose help was not offered before his incident with civil authorities or even after his accident where he was incapacitated. Someone should have said something. c. The status quo of “hear no evil; see no evil” should never have applied to every situation. He was in dire need of assistance with his family hardship. His mother was in constant fear of his father’s mental and physical abuse. Even his commanding officer pointed out this resulted in his disregard for the military, which was not his normal attitude since he had great admiration for the commander he served. 3. The applicant enlisted in the Regular Army on 19 March 1971. 4. A Federal Bureau of Investigation report shows the applicant was arrested by civil authorities in Radcliff, KY, on 26 January 1972 for the sale of drugs. 5. On 25 April 1972, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. 6. He submitted a statement on his own behalf, stating: a. He believed his request for discharge for the good of the service should be approved because he wanted to get out of the Army. He had charges brought against him and also a pending federal conviction, if proven guilty. If found guilty he felt he would have a negative attitude toward his military career and what was in store for him. It would also prevent him from trying to work to his fullest capacity and he would have an attitude of not caring. b. This charge would follow him for the rest of his career and he would be unable to receive a job with a future. The chances of a federal drug conviction made him want to go ahead and get out of the Army. c. He had been stationed at Fort Knox, KY since he began his military service over 1 year prior and he was never previously in trouble. Since these charges were brought against him, he has been looked down upon and mistrusted. He tried to bend with the blows, but he is constantly harassed and aggravated. He just wants to get out of the Army and go back home. 7. A DA Form 3082-R (Statement of Medical Condition), shows the applicant underwent a separation medical examination on 2 May 1972 and he indicated there had been no change in his medical condition. 8. The applicant also provided an undated, unsigned Standard Form 89, without a name or any personal information filled out, that states the examinee’s present health in his own words was “good.” 9. The applicant’s entire chain of command recommended approval of the request and on 31 May 1972, the approval authority approved the request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He directed the issuance of an Undesirable Discharge Certificate. 10. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court- martial on 8 June 1972, after 1 year, 2 months, and 18 days of net active service this period with 2 days of lost time from 25-26 January 1972. His service was characterized as under other than honorable conditions. 11. The applicant applied to the Army Discharge Review Board (ADRB) requesting a discharge upgrade and on 4 August 1977, the ADRB informed him his request had been denied under the Department of Defense Discharge Review Program (Special), determining he had been properly discharged. 12. On 2 July 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The applicant provided roughly 700 pages of post-service medical documentation that was reviewed by the ARBA medical advisor along with the applicant’s service records. The ARBA Medical advisory concluded there is no evidence of a medical or behavioral health condition mitigating the misconduct that led to the applicant’s discharge from the Army or would support a change to the character or reason for the discharge in this case. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 12 July 2019, and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for liberal consideration of discharge upgrade requests, the Board determined relief was not warranted. The Board considered the applicant's statement, the nature of his misconduct and the medical advisory opinion. The Board found insufficient evidence of in-service mitigating factors for his misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board concurred with the conclusion of the advising official. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of 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. X Charles M. Martin 10/30/2019 CHAIRPERSON Signed by: MARTIN.CHARLES.MATTHEW.1074067022 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. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. c. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade.