IN THE CASE OF: BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20190003912 APPLICANT REQUESTS: The applicant requests an upgrade of his bad conduct discharge to a general under honorable conditions discharge; however, evidence shows the applicant received an under other than honorable conditions (UOTHC) discharge under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) Chapter 10. 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 from the Armed Forces of the United States) 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 he requests the correction because there was no trial and for his health issues. 3. On 26 June 1973, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. His record is void of a separation packet. His record shows: a. He was counseled for having several positive urinalyses, admitting he was on heroin, and the possibility of being declared a rehabilitation failure if he had another positive urinalysis. b. On 19 November 1975, he accepted nonjudicial punishment (NJP) for: * wrongfully possessing a roach clip containing tetrahydrocannabinol (marijuana) * failing to go at the time prescribed to his appointed place of duty * willfully disobeying a superior commissioned officer c. On 20 February 1976, court-martial charges were preferred against the applicant for one specification each of: * possessing heroin * violating a general regulation by unlawfully having narcotic paraphernalia, to wit: a needle and syringe d. An Article 32b, Uniform Code of Military Justice (UCMJ) investigation was conducted to investigate the charges preferred against the applicant and to recommend the level of court-martial the charges should be tried. The investigating officer recommended trial by general court-martial. e. Suspension of Favorable Personnel Actions, which shows he was initially pending trial by general court-martial, then pending chapter 10 in lieu of trial by general court-martial, and finally on 15 April 1976, the chapter 10 was approved. f. In connection with his request for separation, the applicant underwent a medical examination and it shows the purpose of the examination was for Chapter 10. g. By Special Orders Number 126, dated 5 May 1976, the applicant was to be discharged under the authority of AR 635-200, Chapter 10, because he requested discharge for the good of the service. 5. On 5 May 1976, he was discharged and his service was characterized as UOTHC. He completed 2 years, 10 months, and 10 days of net active service this period, with 2 years, 3 months, and 28 days of foreign service. He did not receive any personal decorations. 6. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 7. 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: 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 considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. 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), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190003912 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003912 5 ABCMR Record of Proceedings (cont) AR20190003912 4