IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20190010386 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to 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), dated 30 June 2019, with personal statement * a letter of appreciation, dated 7 July 1982 * an extract page of a drug investigation report * DA Form 4126-R (Bar to Reenlistment Certificate), dated 3 November 1982 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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 there was an abuse of power and a violation of his civil and legal rights. The health and safety inspection was prompted by a confidential informant (CI), in order to ingratiate himself to the police and lessen his own offenses. At the time of the inspection, he was not afforded an attorney as requested and he was threatened with prison time. He was not given a copy of the investigation, which is non-factual and a distortion of the facts. The wall locker that contained the illegal drugs was a common use locker and was not his, the drugs he allegedly sold to the CI were not accounted for, and the money allegedly used by the CI was not found on him or accounted for. 3. The applicant enlisted in the Regular Army on 3 April 1980. 4. The applicant received a letter of appreciation on 7 July 1982 for his performance during a Thirty-Man Reactionary Force evaluation. 5. The record contains only the single page of a U.S. Army Criminal Investigation Command (CID) investigation involving the applicant. This extract shows: a. The charges listed under the Uniform Code of Military Justice (UCMJ) were Articles 134 (Possession of a controlled substance (marijuana)) and 81 (Conspiracy). b. The report is only page five, of at least six pages, of a CID preliminary drug investigation. c. The report indicates a CID CI made a controlled purchase of 9.1 grams of marijuana from the applicant, between 2332 and 2344 hours on 20 September 1982. d. It is not conclusive but it appears that a Health and Safety inspection was conducted between 2235 hours, 3 October 1982 and 0035 hours, 4 October 1982 that yielded 119.5 grams of hashish in the wall locker assigned to the applicant. e. During the inspection a second Soldier's wall locker was also searched with an additional 23.2 grams of hashish being found. f. The two Soldiers were advised of their rights and released to their company. 6. Court-martial charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 7. The applicant consulted with legal counsel on 13 December 1982. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He acknowledged that he was guilty of the charges or lesser included charges and that he had no desire to perform further military service. d. He was advised he could submit any statements he desired in his own behalf. His request for discharge indicates he submitted a statement; however, it is not available for review. 8. The separation authority approved the applicant's request for discharge on 20 December 1982, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade, returned to the continental United States, and discharged UOTHC. 9. The applicant was discharged on 29 December 1982, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. His DD Form 214 confirms he was discharged in the rank/grade of private/E-1 and his service was characterized as UOTHC. 10. The applicant was discharged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being discharged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant has not provided and the record contains no evidence of improper conduct or violations vis-à-vis investigative procedures, or that the wall locker in which the illegal drugs were found was not assigned to the applicant. Further, he has not provided any evidence of a violation of his civil or legal rights. 12. The Board may consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. 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 (e.g., possible violations of his rights and investigative irregularities), his record of service, the 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. The Board found no evidence of any violations of his rights relative to the charges against him or during his discharge processing. Based on a preponderance of evidence, the Board determined 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 :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. 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 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 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. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. 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. c. Chapter 10 provides 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 UOTHC is normally considered appropriate. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190010386 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190010386 5 ABCMR Record of Proceedings (cont) AR20190010386 4