ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20190001358 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090017987 on 27 April 2010. 3. The applicant states, in effect, he was accused of possession of marijuana and assaulting a German policeman. He was with a friend and her friend who asked him to roll her a cigarette. He had been drinking, but he was still sober. He took the papers and the envelope that she offered that contained a brown tobacco like substance. As soon as he started to roll the cigarette, the police came and the woman ran away leaving him with the contents of the envelope. He was a victim, knowing nothing about the contents of the envelope. Additionally, he states: a. He had just been promoted that same week. He was not of the mind to do anything wrong. He was just there to have fun. He was cooperative and the police attacked him. b. The police made him place his hands on the wall for a search, while he was being cooperative during the search one of the policemen struck him in the ribs three times, his hands were still on the wall. Fearing being harmed he defended himself from a. being brutalized by a policeman with a gun. He surrendered, was cuffed, put in the car, and the policeman hit him in the face. 4. On 5 May 1982, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty 13B (Cannon Crewmember). The highest rank he held was specialist four. He was assigned to Germany on 30 August 1982. 5. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 23 June 1983, for wrongfully and falsely altering a military pass by substituting the date of 18 April 1983 with the date of 30 December 1983. His punishment consisted of reduction to pay grade private (E-2) (suspended), a forfeiture of pay, extra duty, and restriction. 6. An Apprehension Report shows on 15 September 1984, the Bavarian Office of the State Criminal Police [Germany] were on surveillance at the Discotheque “Cadillac,” Munich, Germany for possible drug offenders. The applicant left the discotheque with two German girls. The applicant was observed showing something to the girls and they were approached by three police officers. Initially, when the police approached them, the applicant was holding a white paper containing marijuana in his hand. “The police control was explained to all three people.” The applicant dropped the paper containing the marijuana and attempted to run away. About 2 grams of marijuana was recovered. The police caught him and explained he was being apprehended. He resisted being handcuffed and attempted to run away again. He resisted in such a manner that a policeman was thrown onto the ground so hard that he possibly sustained a concussion. It was necessary for all three police officers to put the applicant in handcuffs, because he resisted aggressively. The girls ran away, because it took all three officers to apprehend the applicant. The military police at Headquarters Munich was notified of the applicant’s apprehension. 7. On 19 November 1984, charges were preferred against the applicant for resisting apprehension and possessing approximately 2 grams of marijuana with intent to distribute. 8. On 10 December 1984, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of court-martial. He acknowledged by submitting his request for discharge that he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge. He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. He elected not to make a statement in his own behalf. 1. 9. On 11 December 1984, his immediate commander recommended separation with a general discharge. His intermediate commanders recommended separation with an under other than honorable conditions discharge. 10. On 11 December 1984, he accepted an NJP for failing to go to his appointed place of duty (0600 formation) at the time prescribed on 3 December 1983. His punishment consisted of a forfeiture of pay, extra duty, and restriction. 11. On 20 December 1984, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge. 12. On 28 December 1984, the applicant was medically and psychiatrically cleared for separation. 13. On 18 January 1985, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of court-martial with an under other than honorable conditions discharge. He completed 2 years, 8 months, and 19 days of net active service this period, which is almost three fourths of his 4 year service obligation. 14. The applicant’s record shows he was charged with the commission of an offense that was punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10, AR 635-200, are voluntary requests for discharge in lieu of trial by court-martial. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 15. The applicant contends his discharge should be upgrade because he was handed and envelope and asked to roll a cigarette for a friend of a friend. He was a victim, knowing nothing about the contents of the envelope. He started to roll the cigarette and the police came. The women ran away leaving him with the contents of the envelope. He was cooperative and the police attacked him. He was searched and struck in the ribs three times by a policeman. He was also hit in the face and accused of possession of marijuana and assaulting a German policeman. 16. In making its determination, the Board can consider the applicant’s contentions and his 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 the nature of his misconduct and his statement describing the incident. The applicant did not provide any statement regarding post-service conduct that may be considered when making a clemency 1. determination. The Board found there was insufficient evidence to support a change to the applicant’s record. 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. X CHAIRPERSON 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 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 3-7a, provides that 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. Paragraph 3-7b, provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 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 based on 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. a. 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.