ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20190007234 APPLICANT REQUESTS: The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Letter, dated 28 February 2019 * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) 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 submitted a DD Form 149 and VA Form 21-4138, which states: a. He served in Vietnam and received a Vietnam Service Medal with two bronze service stars and served his entire enlistment under honorable conditions. With a month left before he was set to discharge, his car was illegally searched by the military police because he was parked in an officer's parking spot. In the car, there was a little amount of marijuana and a pipe. b. He declared that it was not his and then he was arrested (the applicant directed the Board to see VA Form 21-4138). Because of this incident, he was given an under other than honorable conditions discharge. His vehicle was unlocked and the police had searched his vehicle without him being there and discovered marijuana. That illegal search lead to the discovery of a substance that was not the scope of the initial search that was illegally conducted. c. He was going to receive a court-martial for what would be considered a violation of his constitutional rights. He received a chapter 10 and was pressured into a guilty plea so that he could move on with his life. His plea of guilty was because of the pressure that he faced to make a decision. He was not afforded an opportunity to gather his evidence and plead his case. He was not afforded the availability to competent representation to handle his case. It is under this premise that he feels his discharge should be increased to an under honorable conditions discharge. His constitutional rights were violated in an illegal discovery of evidence, which lead to the fruit of the poisonous tree. 3. The applicant submitted a one-page self-authored statement in which he further elaborates on the claim of an illegal search and the circumstances which led to the search. 4. On 19 August 1970, at the age of 19 years old, the applicant was inducted in the Army of the United States. On 24 August 1970, he was honorably discharged for immediate reenlistment. On 25 August 1970, he enlisted in the Regular Army for a term of 3 years. His record shows he served in the Vietnam from 8 January 1971 to 18 December 1971. 5. The applicant’s record is void of a separation packet. His record shows: a. An Action, by the officer exercising general court-martial jurisdiction, dated 10 March 1972, which indicated that the applicant’s chapter 10 had been approved. He directed that the applicant be reduced to private one (PV1)/E-1 and issued an Undesirable Discharge Certificate (DD Form 258A). b. Special Orders Number 76, which reduced the applicant effective the same day the Action was signed. c. A DA Form 2496-1 (Disposition Form), signed by the applicant on 21 March 1972, indicating that he is being discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. d. Special Orders Number 71, dated 22 March 1972, the applicant’s discharge orders, indicated he was discharged under AR 635-200, Chapter 10 with an under conditions other than honorable discharge, and by reason of discharge for the good of the service. The effective date of the discharge was effective 23 March 1972. e. A memorandum addressed to the applicant, subject: Warning Against Reentering the Military Reservation, dated 23 March 1972, which states "you were discharged from the U.S. Army under the provisions of AR 635-200, SPN (Separation Program Number) 246." 6. On 23 March 1972, he was discharged accordingly. His service was characterized as UOTHC with an Undesirable Discharge Certificate. He completed 1 year, 6 months, and 29 days of net service this period, with 11 months and 11 days of Foreign Service. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for period ending 23 March 1972, shows he was awarded or authorized: * Vietnam Service Medal with two bronze service stars * National Defense Service Medal * Republic of Vietnam Campaign Medal * Rifle Expert Marksmanship Qualification Badge 7. The applicant states his discharge was based on an illegal search by the military police. He was not afforded an opportunity to gather his evidence and plead his case. He was not afforded the availability to competent representation to handle his case. It is under this premise that he feels his discharge should be increased to an under honorable conditions discharge. His record shows he enlisted at the age of 19 years old and his request for Chapter 10 was approved by an officer exercising general court- martial jurisdiction. He completed 18 months and 29 days of his 36 months contractual obligation. 8. 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. 9. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 10. 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: 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 considered the applicant’s statement describing the nature of the misconduct, his service in Vietnam, the absence of a separation packet or charges and whether to apply clemency. The Board found insufficient evidence of mitigation in-service 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. 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 :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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel, it states: a. 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. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization 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. c. 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. d. 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. 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20190007234 5 1