BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20180016808 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Report of Separation from Active Duty) 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. In 1977, the Army Review Board (case number AD77-0740) denied his request to have the nature of his discharge changed. He is requesting that his under other than honorable conditions (UOTHC) discharge, be changed to general, under honorable conditions. b. In December 1975, he was caught "selling marijuana" to Military Police, he was not arrested during the transaction, but two months later he was arrested. He believes he did not receive adequate legal counsel because his counsel failed to prove that the marijuana was his. Since then he has lived a life of a law abiding citizen. He has held many jobs where he was drug tested, and passed all of them. As a truck driver, he made deliveries to various military bases with no problems. It has been more than 42 years since he received an UOTHC discharge. He has lived a drug free and clean life, and deserves to have his Department of Veterans Affairs (VA) benefits reinstated. 3. On 22 April 1974, the applicant enlisted in the Regular Army for a period of 3 years. He was 18 years of age at the time of enlistment. 4. On 18 July 1974, he received non-judicial punishment for stealing a pair of sunglasses from the Army and Air Force Exchange System. 5. On 19 February 1976, he was convicted by a special court-martial. He was found guilty of wrongfully possessing and selling marijuana of less than 2 ounces. He was sentenced to be reduced to the lowest enlisted grade, forfeiture of $200.00 pay per month for four months, and to be confined at hard labor for four months. The sentence was approved and ordered duly executed. 6. On 26 April 1976, a medical examination and a mental status evaluation cleared the applicant for administrative separation. 7. His record reveals excellent conduct and efficiency ratings from April 1974 to April 1975 and contains a resume of his attitude, conduct, performance and discreditable acts while assigned to the retraining brigade. It shows in part: * he stated that he wanted out the Army on two separate occasions * his attitude and motivation were poor * his security clearance was revoked based on his irresponsible and criminal acts * he conducted himself in a disrespectful manner * his potential for retention and future service was extremely poor * he had “unsatisfactory” overall weekly ratings 8. On 27 April 1976, he was recommended by his commanding officer for separation due to misconduct based on an established pattern of shirking. 9. He consulted with counsel, and the applicant was counseled on the basis for contemplated action for separation due to misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). a. He acknowledged that: * he had a right to present his case before a board of officers * as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a GD under honorable conditions or an undesirable discharge (UD) b. He indicated he would submit statements in his own behalf [not available for review], and waived representation by counsel. c. His chain of command recommended approval of his discharge for misconduct, and the separation authority approved his discharge and directed the issuance of an Undesirable Discharge Certificate. Further rehabilitation was waived. 10. On 5 May 1976, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, paragraph 13-5a(1), and his character of service was under other than honorable conditions. He completed 1 year, 9 months, and 28 days of net active service. He had 76 days of time lost due to imprisonment. The applicant was not awarded a personal decoration. 11. In December 1977, after careful consideration, the Army Discharge Review Board determined he had been properly discharged. His request for a change in the type and nature of his discharge was denied. 12. Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals because of frequent incidents of a discreditable nature with civil or military authorities, an established pattern of shirking, patterns of misconduct, and for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. 13. In reaching its determination, the Board can consider the applicant’s petition and service record 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 discussed service record, the frequency and nature of his misconduct, his statement of post-service accomplishments and the application of clemency. The Board determined that there was insufficient mitigating factors to support clemency determination and that the current character of service is not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined 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, 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals because of frequent incidents of a discreditable nature with civil or military authorities, an established pattern of shirking, patterns of misconduct, and for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. The regulation also states that: 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 13 provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. It provided for the separation of individuals because of frequent incidents of a discreditable nature with civil or military authorities, an established pattern of shirking, patterns of misconduct, and for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. 3. 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. 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, 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. 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) AR20180016808 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016808 6 ABCMR Record of Proceedings (cont) AR20180016808 4