IN THE CASE OF: BOARD DATE: 9 March 2020 DOCKET NUMBER: AR20190012073 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 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 19 August 2019 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, in effect, he needs benefits and would like his discharge upgraded. He had no representation. 3. The applicant enlisted in the Regular Army on 29 August 1974. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 26 June 1975, for failing to go at the time prescribed to his appointed place of duty, on or about 25 June 1975 * on 23 October 1975, for being found sleep at his post, on or about 18 October 1975 5. The applicant was formally counseled on 20 June 1975 for having a rebellious attitude, and for the possibility that he would be charged for being apprehended by the Military Police (MP) for possession of marijuana. The applicant was required to be evaluated for possible enrollment in the Alcohol and Drug Abuse Division (ADAD) Program: The applicant reported to the to the alcohol and drug center on 17 June 1975, and after an extensive interview/evaluation, he was required to enroll in the mandatory drug treatment program. 6. The applicant was formally counseled on eight separate occasions between 30 June 1975 and 13 April 1976, for reasons including but not limited to: * failure to be at appointed place of duty * civilian charges for petty theft * failure to follow orders or regulation * disrespectful behavior towards his squad leader * being sleep on duty * use of abusive language towards a non-commissioned officer (NCO) 7. Upon the applicants request on 21 January 1976, he entered the ADAD residential rehabilitation program on 2 February 1976, for a period not to exceed 27 February 1976. The applicant completed the ADAD in-house resident program. 8. In an informal counseling on 1 March 1976, the applicant requested to be discharged from the Army. A memorandum dated 26 March 1976 shows he underwent a urinalysis that showed he was not drug dependent at the time. 9. The applicant for formally counseled on 13 April 1976 for acts of misconduct that took place on 3 March and 12 April 1976, for refusing to obey or offer protest without reason to orders given by NCOs and using abusive foul language while in formation. 10. The applicant submitted a statement on 13 April 1976, regarding the formal counseling where he noted that once it was discovered by his team leader that he was getting out the Army, he was mentally and unfairly harassed. He did act very rational and unruly. He was a reformed drug user who wanted to make something out of himself. He was not taking orders from a Soldier who had been in service half his time. He felt that it was low rating and his morale declined to almost nothing. He used foul language because the orders the NCO had given him made him feel less than a human being. The NCO told him that before he left he was going to bring smoke on his black ass. He had his guard up since that moment and it had a lot to do with pride. 11. The applicant underwent a mental hygiene evaluation and a report dated 13 April 1976 noted that he had impressions of immature personality. His behavior was characterized by impulsivity, failure to assume responsibility, poor decision making, and a marked inability to cope with stressful situations in a mature manner. Due to his history of drug abuse and frequent non-judicial punishment, he was not viewed as amenable for further military service and represented a threat to the accomplishment of the military mission. He was oriented with no suicidal or homicidal ideations or intent. There were no evidence of a thought disorder, process or content. His mood was mildly depressed, affect appropriate. He was cleared for any administrative action deemed appropriate by his commander. 12. The applicant's commander notified the applicant on 20 April 1976 that he was initiating actions to separate the applicant from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, for misconduct – frequent incidents of a discreditable nature with civil or military authorities. 13. The applicant acknowledged receipt of the proposed separation notification memorandum on 20 May 1976. He consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effects of a waiver of his rights. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life in the event a UOTHC discharge was issued to him. He elected to make a statement in his own behalf; however, his record is void of a statement in his own behalf. 14. The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, for misconduct. 15. The separation authority approved the recommended discharge on 10 June 1976, under the provisions of Army Regulation 635-200, Chapter 13, and directed the applicant's and immediate reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 16. The applicant was discharged on 24 June 1976. The DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a (1). His DD Form 214 confirms he was discharged in the lowest enlisted grade, his service was characterized as UOTHC, and he was issued an Undesirable Discharge Certificate. 17. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 7 August 1979, determined he was properly discharged, and denied his request for relief 18. The Board should consider the applicant's statement and overall 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, his record of service, the frequency and nature of his misconduct, his enrollment in and completion of an ADAD resident program, his mental hygiene evaluation, his notification of separation and the reason for his discharge. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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 : : : 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 635-200 sets forth the requirements and procedures 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. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 3. 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) AR20190012073 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1