BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180016216 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge to at least general under honorable conditions * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two letters of support * Applicant's identification cards * Security Company letter * Extract from DA Form 2-1 (Personnel Qualification Record – Part II) * Continuation sheet from a DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice) * Partial copy of DD Form 214 (Certificate of Release or Discharge from Active Duty) * Extract of Applicant's military medical and dental records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 he was erroneously discharged and his separation no longer serves a valid purpose. In addition, his discharge was procedurally defective and inequitable. He was 20 years old at the time, and his father was terminally ill; he went into a deep depression because he had no insurance and was given the responsibility of caring for his father. His best thought was to sell marijuana; however, this did not work out well. 3. The applicant provides two letters of support and additional documentation intended to support his claims. The letters of support essentially describe the applicant as a dedicated football program coordinator and coach who has donated his time and energy to help inner city youth. He has also spent countless hours assisting students at a community center with homework; he also mentors them to achieve passing scores in important examinations. 4. The applicant's service records show: a. He enlisted into the Regular Army on 4 October 1978 for a 3-year term; he was 18 years old. During advanced individual training for military occupational specialty 54E (Chemical Operations Specialist), the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions: * 13 March 1979 – two specifications of failing to go to his appointed place of duty at the time prescribed; one specification pertaining to dereliction of duty by failing to secure his wall locker; and one specification for gambling while on government-owned property * 16 March 1979 – breaking restriction c. After completing initial training, orders assigned him to Germany; he arrived on 20 March 1979. On 1 July 1979, his chain of command promoted him to private (PV2)/E-2. d. In or around August 1979, his chain of command placed him on emergency leave, due to family problems; while in this status, the applicant applied for a compassionate reassignment. In or around November 1979, Department of the Army approved his application and orders reassigned him to Fort Hamilton, NY. e. On 7 October 1980, a U.S. Army Criminal Investigation Command (CID) special agent (SA), located at Fort Hamilton, received information from a confidential informant that the applicant was selling illicit drugs to Soldiers on Fort Hamilton. On 9 October 1980, at Fort Hamilton, the applicant sold the confidential informant a packet containing a white powdery substance; subsequent laboratory tests confirmed the presence of cocaine. f. On 14 November 1980, the confidential informant told CID the applicant was at the Post Exchange and had cocaine in his possession; at the time, the military police were issuing the applicant a parking ticket. (1) The CID SA apprehended the applicant while he waited for his ticket and, during a search, found two packets of marijuana. Prior to completion of the search, the applicant was observed placing an object (paper that appeared to contain drugs) in his mouth and swallowing it. (2) The applicant was transported to the post health clinic where medical authority pumped his stomach, but only normal stomach contents were revealed; he was admitted to the hospital for observation. (3) On 14 November 1980, CID interviewed the applicant and he admitted ownership of the marijuana; he denied selling cocaine. Medical authority released the applicant from the hospital, on 17 November 1980, and returned him to duty. (4) Following consultation of the Office of the Staff Judge Advocate, CID cited him for wrongful possession and sale of cocaine, and wrongful possession and use of marijuana. g. At some point prior to 21 January 1981, the applicant's commander preferred court-martial charges against him; the DD Form 458 (Charge Sheet) is no longer available in the applicant's service record. On 21 January 1981, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request; he further acknowledged he was guilty of the charges. He elected not to submit a statement in his own behalf. The applicant's discharge request did not list the UCMJ violations for which he was charged. h. On 23 January 1981, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; in addition, he ordered the applicant's reduction in rank to private/E-1. On 6 February 1981, the applicant was discharged accordingly. His DD Form 214 shows he completed 2 years, 3 months, and 11 days of his 3-year enlistment, with three periods of lost time totaling 22 days. He was awarded or authorized a marksmanship qualification badge. i. On 10 February 1983, the applicant petitioned the Army Discharge Review Board (ADRB), requesting a upgrade to general under honorable conditions; he also asked to personally appear before the ADRB with counsel. (1) The applicant argued his under other than honorable conditions character of service was too harsh because there were mitigating circumstances surrounding his use and sale of drugs. His father was very ill and financially in debt; the applicant used the proceeds from drug sales to pay his father's bills. In addition, the applicant used drugs to relieve the stress he felt from his problems. (2) On 10 February 1983, the applicant appeared with counsel before the ADRB and was able to present testimony and documentary evidence. At the conclusion of the hearing, the ADRB denied the applicant's request, finding his discharge had been proper and equitable. The ADRB noted the applicant had already received two NJPs prior to being compassionately reassigned to Fort Hamilton, and, while at Fort Hamilton, he accumulated three periods of absence without leave. Although the charge sheet associated with the applicant's discharge was not available, there was ample evidence he committed serious offenses related to drug possession and trafficking. 4. Regarding the applicant's request for a personal appearance, AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board; however, a Board panel or the Director, ABCMR may authorized a request for a hearing on a case-by-case basis. As a separate matter, this regulation also states the Board presumes administrative regularity, meaning the Board begins its review of each case assuming what the records show is administratively correct. 5. While on active duty, the applicant committed violations of the UCMJ that included punitive discharges as a punishment. The applicant voluntarily requested separation under chapter 10, AR 635-200. The applicant essentially contends there were mitigating circumstances; in effect, he sold drugs because his father was terminally ill and in debt. He thought the best way to raise the money needed was to sell marijuana. 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 not enough evidence of mitigating circumstances for the misconduct. The Board found limited evidence of remorse or post-service honorable conduct that might have mitigated the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 1-13a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Paragraph 1-13b (General Discharge). A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 permitted a Soldier to request discharge for the good of the service when they had committed an offense or offenses which, under the UCMJ and the Manual for Courts-Martial, United States 1969 (Revised Edition), included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Commanders were to ensure the request for discharge was a personal decision, free of coercion, and that the Soldier was given a reasonable amount of time to consult with counsel. Once the Soldier made the decision to request discharge, he/she had to put it in writing and counsel was required to sign as a witness. Once approved, an under other than honorable conditions character of service was normally furnished, but the discharge authority could direct either an honorable or general discharge, if warranted. 3. The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of Maximum Punishments showed an dishonorable discharge was an authorized punishment for wrongful possession, sale, transfer, use, or introduction onto a military post of an illicit drug (included both habit-forming drugs and marijuana). 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 7-64c (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 5. 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 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. 6. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption an applicant's military service record is correct (i.e. administrative regularity). b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016216 6 ABCMR Record of Proceedings (cont) AR20180016216 1