IN THE CASE OF: BOARD DATE: 27 January 2020 DOCKET NUMBER: AR20190011002 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decisions as promulgated in Dockets Number AR20130012507 and AR20170004024, on 25 March 2014 and 7 June 2019, respectively. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded. Additionally, he requests a personal appearance before the Board. 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 5 August 2019, with self-authored statement * letter from the Army Review Boards Agency (ARBA), dated 11 July 2013 * documents comprising Part A: * Statement to Board, dated 24 February 2017 * ABCMR Docket Number AR20170004024, dated 7 June 2019 * ABCMR Decision Letter, dated 25 June 2019 * documents comprising Part B: * Certificate of Participation, dated 13 May 1967 * Letter from Soo Line Railroad Company, dated 7 February 1975 * Letter from Burlington Northern, dated 24 August 1982 * Certificate of Promotion, dated 4 August 1982 * Diploma, dated 4 May 1990, with transcripts * 12 Character Reference Letters, dated between September 1995 and February 2009 * Certificate of Appreciation, undated * nine pages of medical documents, dated between 12 October 2015 and 7 November 2017 * Certificate of Registration, dated 8 September 2015 * Book Review for Harley Tracks: Across Vietnam to the Wall, authored by the applicant and published on 13 June 2015, with photos * two Certificates of Appreciation, dated 15 May 2019 * Earnings Statement, dated 28 June 2019 * TransUnion Credit Score, dated 25 July 2019 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 Dockets Number AR20130012507 and AR20170004024, on 25 March 2014 and 7 June 2019, respectively. 2. The applicant states: a. He developed a patriotic nature in rural North Dakota, where his father was an American Legion Post Commander. After his military service, he rose to the positions of locomotive engineer and conductor on two railroads. He became a golf course superintendent and was awarded two scholarships. He worked full time while attending school and graduated with honors. He was employed at prestigious golf clubs across America and Asia. b. His professional highlights include preparations for the U.S. and Asian Professional Golfers Association (PGA) Golf Championships. In December 2012, after 15 years in Asia, he returned to America. He volunteered at a Veterans center while he wrote a book. He has maintained good credit and good health. c. His book, "Harley Tracks: Across Vietnam to the Wall," conveys an essence of American character – that of a free-spirited and patriotic nature. Readers connect with it. He expected to recover expenses and share profits in the names of those he rode for but he has yet to make significant sales. Shame has grown to a force in his character, and in the promotion of his book to avoid exposure of his discharge status. d. Since 2013, he has made annual rides across America with the National Veterans Awareness Organization. From Auburn, CA to Washington D.C., the ten day ride is an emotional roller coaster as they visit Veterans in homes and hospitals. They visit schools and perform ceremonies at cemeteries and memorials. He lives a frugal life and drives a school bus to supplement his retirement income. He would like relief from the shame he has lived with for 46 years. 3. The applicant enlisted in the Regular Army on 31 January 1972. 4. The applicant accepted non-judicial punishment on 7 June 1973, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for possessing eight foil packets containing heroin, on or about 2 April 1973, and for possessing marijuana, on or about 23 April 1973. 5. Court-martial charges were preferred against the applicant on 23 August 1973, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * violating a lawful general regulation by being in possession of marijuana, on or about 3 July 1973 * violating a lawful general regulation by being in possession of heroin, on or about 3 July 1973 6. The applicant consulted with legal counsel on 7 September 1973. 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 elected not to submit a statement in his own behalf. 7. The separation authority approved the applicant's request for discharge on 14 September 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 8. The applicant was discharged on 15 October 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, and his service was characterized as UOTHC. 9. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, 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. 10. The Army Discharge Review Board considered the applicant's request for a discharge upgrade, determined that he was properly and equitably discharged, and denied his petition on 3 June 1982. 11. 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, 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 found his evidence of post-service achievements and letters of reference to be insufficient to support a favorable clemency determination in this case. 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. The Board agreed that the evidence provided by the applicant and the evidence available in his service record were sufficient to fully and fairly consider this case without a personal appearance by the applicant. 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) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice require. 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. c. Chapter 10 of that regulation provides, in pertinent part, 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) AR20190011002 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011002 6 ABCMR Record of Proceedings (cont) AR20190011002 5