ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 July 2019 DOCKET NUMBER: AR20190002063 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to general under honorable conditions. 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) * Documents from State Clerk of Court * Two Letters of Support 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 made a foolish mistake and has learned from it. a. Since his discharge, he has lead a productive life and not been in any trouble. His foolish mistake was caused by circumstances related to a bad marriage and having to send all of his money home to care for his children. He contends he has been a good father to his children all along, and believes his mistake taught him a lesson he needed to learn: no matter how bad things get, you can get through it without doing something wrong. b. He was stationed in Germany, and his wife and children were in Alabama. His wife was not making good decisions about their children, and she was moving them from place to place. Each month, he would send her all but $75 of his money. He foolishly decided to sell hashish, as a way of supplementing his income, because he was trying to make ends meet. c. He sold 2 grams of hashish to a CID (U.S. Army Criminal Investigation Command) agent; this was the reason for his discharge. After his discharge, he immediately divorced his wife and obtained custody of their children; he has not been in trouble since. d. He has raised a total of 5 children; he remarried 8 years later and has remained married ever since. Two of his children entered military service, ultimately retiring. Another child has been in the U.S. Air Force for 10 years and plans to retire. He taught his kids to lead productive lives and avoid trouble. 3. The applicant provides State court documentation showing he does not have a criminal record. He also includes two letters of support, which essentially affirm he is a decent and honorable man who loves his family; the applicant is always there for his friends. 4. The applicant's service records show: a. He enlisted into the Regular Army on 20 May 1976 for a 4-year term; he was 19 years of age. While still in initial training, his chain of command promoted him to private/E-2. On completion of training, orders assigned him to Fort Polk, LA; he arrived on 8 November 1976. b. On 1 June 1977, his Fort Polk chain of command promoted him to private first class (PFC)/E-3. On 15 November 1977, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave from 7 until 12 November 1977 (5 days). Orders reassigned him to Germany; he arrived on 29 June 1978. c. While assigned in Germany, he accepted NJP on two occasions: * 8 March 1979 – abandoning his guard post; making a false sworn statement regarding the reason he left his guard post; punishment included reduction to private/E-1 * 22 October 1979 – sleeping on guard duty d. The applicant's complete separation packet is not available for review; however, his service records show, on 2 January 1980, after consulting with counsel, the applicant requested discharge 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). His request did not list the specific charges, but the applicant affirmed no one subjected him to coercion and his counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge and elected not to submit a statement in his own behalf. e. His service records also show, on 10 January 1980, the separation authority approved the applicant's request and directed his under than honorable conditions discharge. On 22 January 1980, he was discharged accordingly; his DD Form 214 indicated he completed 3 years, 7 months and 28 days of his 4-year enlistment contract, with 5 days of lost time. He was awarded or authorized a marksmanship qualification badge. f. On 24 February 1981, he petitioned the ADRB, requesting an upgraded character of service. In support of his request, he submitted a self-authored statement and eight letters of support. (1) He argued he was under great mental stress; he felt like he had no other alternative, and if there had been another way, he would have chosen it. (a) When he left the United States, he had a wife and 3 children, aged 9 months to 5 years. His wife was living with her parents, but she was not satisfied with these arrangements because her parents often complained. The applicant was only a PFC and could not afford a house payment. (b) In time, the situation became a "living hell" for them; because of this, the applicant's parents decided to take in his family. Unfortunately, the applicant's mother was in poor health and could not tolerate the noise made by his children. In addition, his daughter began to have blackouts; as a result, she was in and out of the hospital. His wife began to complain about the applicant not being there to help. The applicant reached the point where he could no longer take it, so he asked for a discharge; he now realized he had made a mistake. (2) On 6 April 1982, the applicant appeared before the ADRB with counsel. (a) The applicant testified he had performed well while assigned in the United States; he was promoted to PFC and received letters for outstanding duty performance. He began to have problems with his wife just before his reassignment to Germany; they had no place to live and his wife did not properly care for their children. She threatened to leave him and did not want him to report to Germany. (b) About 9 months after his arrival in Germany, he started to use drugs and developed a severe habit. He was beaten up by five white Soldiers and had to be hospitalized; he accepted NJP for making a false official statement, but his official statement was actually true. (c) Regarding the chapter 10 charges, he indicated a Soldier approached him, asking for drugs; after showing the Soldier four grams of marijuana, the Soldier identified himself as a CID agent. He did not really want to submit a chapter 10 separation request, but he did so for his family. Apart from four specifications for marijuana possession, there were no other UCMJ violations charged. (e) Counsel contended the applicant's drug usage was caused by his marital problems; he had tried to rehabilitate himself following his discharge and no longer used drugs. (3) On 15 June 1982, the ADRB denied his request, finding his discharge was proper and equitable. The ADRB president noted the board had secured a copy of the CID report and provided it to the applicant; neither the applicant nor his counsel submitted any further documentation. 5. The applicant accepts responsibility for the misconduct that led to his adverse discharge, and contends there were extenuating circumstances. Since his discharge, he has learned from his mistakes and has not been in any trouble; he has been a good father to his five children, three of whom have gone on to serve in the military. a. Soldiers charged with UCMJ violations, for which a punitive discharge was a punishment, could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. b. 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: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the record and published DoD guidance for consideration of discharge upgrade request. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the absence of a separation packet, the reason for his separation and whether to apply clemency. The Board considered the applicant’s previous statements to the ADRB but found insufficient evidence of in-service mitigating factors to overcome the serious misconduct. The Board considered his statement of remorse and post-service conduct as well as the letters of support, but found he provided insufficient evidence with his claim to support a clemency determination. Based upon a preponderance of evidence, the Board 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 :XXX :XXX :XXX 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 1-13b (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. b. 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 Article 134 (General Article – Wrongful Transfer and Possession of Marijuana on a Military Base), UCMJ, included a dishonorable discharge. 4. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 7-64c (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 5. 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. 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