ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20180016517 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC79-05496 on 24 October 1979. In effect, he requests his dishonorable discharge be upgraded to a more favorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement, dated 10 September 2018 * DA Form 2-1 (Personnel Qualification Record – Part II), page 3 * DA Form 2-2 (Insert Sheet to DA Form 2, Record of Court-Martial Conviction) * Special Orders Number 259, issued by Headquarters, U.S. Army, Europe and Seventh Army on 16 September 1975 * DD Form 173 (Joint Message Form), dated 24 June 1976 * DD Form 214 (Report of Separation from Active Duty), for the period ending 9 September 1977 * DD Form 149 (Application for Correction of Military or Naval Record Under the Provisions of Title 10, U.S. Code, Section 1552), with self-authored statement, dated 11 June 1979 * Office of the Adjutant General Reserve Components Personnel and Administration Center, request for records, dated 14 September 1979 * ABCMR Docket Number AC79-05496, dated 24 October 1979 * Memorandum for The Adjutant General, dated 30 October 1979 * Notification letter for denial of ABCMR packet, dated 15 November 1979 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC79-05496, dated 24 October 1979. 2. The applicant provides a new statement that was not considered by the Board during its initial consideration of his request. As a new argument, the applicant states: a. He was 19 years old when he arrived in Germany on 14 August 1974. Shortly after arriving, he fell in with the wrong crowd and starting drinking and smoking hashish. This set the course for landing in Fort Leavenworth Federal Prison and his receipt of a dishonorable discharge. b. He and his wife were introduced to a sergeant [who sold hash] and his German girlfriend [the drug supplier], who lived in the same building. He thought the sergeant was transferred back stateside. The applicant was arrested on 16 July 1975, for 28 counts of selling and possessing hashish based on the statements of two other people. One of these people was proven to have perjured himself, because he stated he met the applicant in May 1974 and had personal knowledge of the infractions as charged. He [the applicant] didn’t arrive in Germany until August, thus the aforementioned statement was false. c. He was scared and when told he could face up to 100 years in prison, he accepted the pretrial agreement of 2 years. Even though he knew they didn’t have any physical evidence against him, and there wasn't a positive urine test, he was afraid of the unknown. As a young black male he felt trapped, with no chance for help, he could either take what they offered or face life in prison. He felt "railroaded" into making a deal and his attorneys did not effectively counsel him. d. Everyone involved went to jail, including his wife, who was deported after testifying against the German girl. He later ran into the sergeant again stateside, he was also incarcerated. He has a medical condition which happened while in the military and he cannot get the care he needs because of the character of his discharge. e. He received his General Education Degree while at Fort Leavenworth and took Guides for Better Living classes to better himself. He went to Paul's Beauty College in Oklahoma City and got a cosmetology license. He is a productive and successful business man, and self-employed hair stylist. He is a deacon at Kingdom Christian Fellowship in Madison, AL. He has had a wonderful life but feels like a cloud is hanging over him because of the character of his discharge. 3. The applicant enlisted in the Regular Army on 30 March 1974. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 16 December 1974, for failing to go at the prescribed time to his appointed place of duty, and for missing movement, on or about 12 December 1974 * on 15 May 1975, for being derelict in the performance of his duties on two occasions (falling asleep while on duty as Charge of Quarters Runner), each instance on or about 12 May 1975 * on 19 May 1975, for failing to go at the prescribed time to his appointed place of duty, on or about 15 May 1975, and for being derelict in the performance of his duty (falling asleep while on duty as Floor Monitor), on or about 16 May 1975 5. The applicant’s service record contain an Army Europe (AE) Form 1107 (Bar to Enlistment/ Reenlistment), showing a bar to reenlistment was initiated on 27 May 1975. The form shows the applicant "has refused continued efforts by the chain of command to correct his poor performance and acts of misconduct. This individual does not except authority or show any concern for those efforts made on his behalf. The responsibility shown by [the applicant] towards his duties, his unit, his family and himself has been unsatisfactory. His involvement in drug abuse only furthers the reasons why he should not be retained in the United States Army." The bar was approved on 29 May 1975 and he was reduced in rank/grade from private/E-2 to private/E-1. 6. The applicant was tried before a general court-martial on 10 September 1975, at Wurzburg, Germany, and was convicted of four counts of violating Article 134 of the Uniform Code of Military Justice (UCMJ). Specifically, he was convicted of wrongfully using marijuana in the hashish form, at diverse times between 1 January 1975 and 30 June 1975; wrongfully selling 1000 grams, more or less, of marijuana in the hashish form, at diverse times between 1 January 1975 and 30 June 1975; wrongfully using a gram, more or less, of a habit forming narcotic drug, at diverse time between 1 January 1975 and 30 June 1975; and wrongfully selling 2 grams, more or less, of a habit forming narcotic drug, at diverse time between 1 January 1975 and 30 June 1975. His sentence included 2 years confinement at hard labor. 7. The convening authority approved the sentence on 2 October 1975. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. The applicant was confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS. 8. The U.S. Army Court of Military Review conducted an appellate review; however, the exact outcome of that review is unclear. Nevertheless, on 4 February 1976, the U.S. Court of Military Appeals vacated the prior decision of the U.S. Army Court of Military Review and remanded the case back to that court for further review. 9. The applicant’s petition for clemency was denied by the U.S. Army Clemency and Parole Board on 24 June 1976; however, it was ordered that he be released on parole no later than 7 August 1976. The applicant received a Certificate of Parole on 28 June 1976, with instructions to release him or before 7 August 1976. 10. The U.S. Army Court of Military Review reconsidered its past decision in light of the direction of the U.S. Court of Military Appeals. Following its additional appellate review, the court affirmed the applicant's sentence on 24 May 1977. 11. General Court-Martial Order Number 672, issued by the Headquarters, U.S. Disciplinary Barracks Fort Leavenworth, Kansas on 22 July 1977, noted that the applicant's sentence had finally been affirmed and ordered his dishonorable discharge duly executed. 12. The applicant was discharged on 9 September 1977, pursuant to his court-martial sentence. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1, (Dishonorable and Bad Conduct Discharge), and his service was characterized as dishonorable. 13. The applicant provides the following for consideration in his case: * DD Form 2-1, Page 3 with the 740823 highlighted, indicating the date he arrived in Germany * DA Form 2-2, showing his court-martial conviction * Special Orders Number 259, showing his eligibility for a transfer to CONUS for confinement, at Fort Leavenworth, KS dated 16 September 1975 * DD Form 173, dated 24 June 1976 showing his clemency request was denied * DD Form 149, dated 11 June 1979 showing he previously applied for an upgrade with ABCMR Docket Number AC79-05496 Board proceedings, dated 24 October 1979 * Office of the Adjutant General Reserve Components Personnel and Administration Center, showing he requested his records on 14 September 1979 * Army Board for Correction of Military Records (ABCMR) Docket Number AC79- 05496, dated 24 October 1979 * Memorandum for The Adjutant General, dated 30 October 1979 showing his packet was denied for insufficient evidence with a notification letter for denial of ABCMR packet, dated 15 November 1979 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 15. The Board should consider the applicant's statement 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 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 results of the court-martial, the reason for his separation and whether to provide clemency. The applicant provided a statement regarding the misconduct, but the Board found no other mitigation in the records and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found there was insufficient evidence to grant clemency and 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. 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 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 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. ABCMR Record of Proceedings (cont) AR20180016517 2