ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 May 2019

	DOCKET NUMBER:  AR20190001958


APPLICANT REQUESTS:  Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20090008456 on 6 August 2009.  Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)

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 AR20090008456 on 6 August 2009.

2.  The applicant states he served for over a year with no misconduct but then he injured his back and was introduced to heroin for his pain; he became addicted.  The Arkansas State Supreme Court granted his appeal of the conviction and released him.  Since his discharge, he has been struggling with depression and anxiety.  He has kicked the habit and is eight credits short of a degree in criminal justice.

3.  The applicant enlisted in the Regular Army on 27 September 1974.

4.  The applicant appeared before the District Court of Sebastian County, State of Arkansas on 26 May 1976, where he was convicted of the delivery and sale of a controlled substance (heroin).  The applicant was sentenced to 15 years in civil confinement.  The applicant appealed the conviction and on appeal, was granted a new trial.  The applicant was held in civilian custody pending his second trial.

5.  At his second trial on 29 August 1977, he changed his plea on a reduced charge of delivery of a controlled substance from not guilty to nolo contenders (heroin).  He was sentenced to 5 years in civil confinement.  The State noted that under Arkansas law, a plea of nolo contenders cannot be appealed; therefore, his conviction was final.

6.  The applicant's commander notified the applicant on 12 October 1977 that he was being recommended for discharge under the provisions of Army Regulation 635-206 (Personnel Separations ? Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, [Absent Without Leave] AWOL, Desertion), by reason of his civilian conviction.  

7.  The applicant appears to have only partially completed the acknowledgement form indicating he was waving a consideration of his case by a board of officers.  The form is not signed and there is no indication he submitted a statement on his own behalf.

8.  The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-206.  The separation authority approved the recommendation on 28 November 1977 and directed that the applicant be reduced to pay grade E-1 and be discharged under the provisions of Army Regulation 
635-206, by reason of misconduct (civil conviction), with his service characterized as UOTHC.

9.  The applicant was discharged on 22 December 1977.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-206, in the lowest enlisted grade, and his service was characterized as UOTHC.  

10.  The applicant was tried and convicted by a civil court on the charge of delivery of a controlled substance.  There is no evidence that his second trial conviction was overturned by the State.

11.  The ABCMR denied the applicant's prior request for a discharge upgrade on 
6 August 2009, noting that he had not provided neither probative evidence nor a convincing argument in support of his request.

12.  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, his statement, the evidence in the record and published DOD guidance for consideration of upgrade requests.  The Board discussed his service record and the serious nature of his misconduct.  The Board did not find mitigation for the misconduct and determined that clemency was not warranted. 

2.  After reviewing the application and evidence, 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.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

2.  Army Regulation 635-206, then in effect, provided that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of one year or more, was to be considered for elimination.  When such separation was warranted, an undesirable discharge was considered appropriate.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   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.
   
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)	 AR20190001958


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