ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20190000241 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Army Discharge Review Board (ADRB)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 very young and had just graduated from high school when he went straight into the Army. He had no clue what he was getting himself into; he truly apologizes for his mistake. He is much older now and is a better person. He also realizes having an under other than honorable conditions character of service prevents him from obtaining Department of Veterans Affairs' (VA) health benefits. While he was on active duty, his chain of command never offered help for his excessive drinking; he states he was exposed to both drugs and alcohol. 3. The applicant's service record shows: a. He enlisted into the Regular Army as a private first class (PFC)/E-3, on 30 May 1978. His enlistment was for 4 years; he was 19 years old. On 5 October 1978, while in One-Station-Unit-Training (OSUT), he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for leaving his post as a sentinel before being properly relieved. On completion of OSUT training, orders assigned him to Germany; he arrived on 5 January 1979. b. On 10 May 1979, the applicant was mandatorily referred into the Army's Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), based on a positive urinalysis for amphetamine. On 25 September 1979, his commander indicated the applicant had been declared a rehabilitation success; he entered the follow-up rehabilitation phase. c. On 6 November 1979, he accepted NJP for failing to go to his appointed place of duty at the time prescribed; using disrespectful language toward a superior noncommissioned officer; and failing to obey a general regulation by possessing a straight razor. Punishment included reduction in rank from PFC to private/E-2. d. On 21 December 1979, the applicant's commander preferred court-martial charges against him for stealing seven packages of cigarettes and two lighters (Article 121 (Larceny of Property)), and for possessing marijuana (General Article – Possession of Drugs)). On 10 January 1980, his commander preferred an additional charge of violating Article 86, UCMJ by being absent without leave (AWOL) from 2 until 7 January 1980. Along with the charges, the commander included a personal evaluation in which he stated the applicant's job performance had fallen off drastically during the past 3 months; the commander believed the applicant experienced a loss of ambition and noted the applicant's marked apathy toward his unit. e. On 1 February 1980, 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. f. On 22 February 1980, 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 7 March 1980, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 9 months, and 4 days of his 4-year enlistment, with lost time from 3 through 6 January 1980 (4 days). He was awarded or authorized two marksmanship qualification badges. g. On 16 February 1982, he petitioned the ADRB for an upgrade to honorable. (1) He asserted he was being used while he was assigned to his unit in Germany. (a) A week after he left, the first sergeant (1SG) was kicked out of the company; this 1SG was a real problem. No matter how hard the applicant worked, the 1SG would pull him aside whenever he saw the applicant with someone who had a problem with the Army; the 1SG would tell him those people were not good for him, and that he should not talk with them anymore. In effect, he felt the 1SG had no right to tell him who to choose as friends. (b) He loved the Army and was good at his job (Radio-Teletype Operator). He described how, after being there for only a short time, he took over his section while his staff sergeant went on leave; he did a very good job, despite being short of Soldiers. He came into the Army as a PFC because he had participated in 3 years of Reserve Officers Training Corps training. (2) On 10 February 1983, the ADRB denied the applicant's request; the ADRB did not find any evidence to support the applicant's assertions and noted his misconduct started before he arrived at his unit in Germany. 4. The applicant essentially contends he was young and did not realize what he was getting himself into; he has since turned his life around. He seeks access to VA health benefits. 5. While on active duty, the applicant committed violations of the UCMJ that included punitive discharges as a punishment. Discharges under chapter 10, AR 635-200 were voluntary and offered in-lieu of trial by court-martial. 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 Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. 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 the following UCMJ articles included a punitive discharge as a punishment: * Article 121 (Larceny of Property) – stealing property valued at $100 or less, but more than $50; bad conduct discharge * Article 134 (General Article – Possession of Drugs) – possession of marijuana; dishonorable discharge 4. 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. ABCMR Record of Proceedings (cont) AR20190000241 5 1