IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20190012410 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20170013687 on 20 June 2019. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * A self-authored letter, dated 9 September 2019, requesting reconsideration of the ABCMR decision as promulgated in Docket Number AR20170013687 on 20 June 2019 * ABCMR denial letter, dated 27 August 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 Docket Number AR20170013687 on 20 June 2019. 2. As a new argument, the applicant states in effect: a. He appreciates the Board's time in this case and respects the decision as his behavior was atrocious and certainly not deserving of honorable conclusions. He is requesting reconsideration because, he was addicted to crystal methylphenidate for almost two years; he administered the drug intravenously several times daily; and this altered his behavior. He did not mention this in his last application. b. He was caught administering the drug by a sergeant and was immediately shipped back to Mannheim, Germany. This happened a few months before the end of his tour of duty. He was forced to detox in a small six by eight cement cell in solitary confinement, with no doctors or medical care. It was an excruciating experience and it took several months before he could carry a normal conversation, as his mind was altered. Eventually, his mind returned to normal, with the help of friends and family after he returned home. c. In the early 1970s, addiction was not considered a disease but it was and still is. He has never taken drugs since, he learned the results. With this in mind, he is asking for a medical discharge. He was young (seventeen) and foolish at the time, which allowed his frustrations to influence him when other service members introduced him to the drug. He had never taken drugs before then. 3. The applicant enlisted in the Regular Army on 4 January 1970. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions for the following offenses: a. On 9 November 1970, for without authority failing to go at the prescribed time to his appointed place of duty, on or about 21 August 1979. His punishment included a 60 day suspended reduction to private/E-2. The suspended punishment was vacated on 28 November 1970. b. On 3 August 1971, for failing to obey a lawful order from his superior officer; and for acting with disrespect towards his senior noncommissioned officer, on or about 3 August 1971. His punishment included a reduction to private/E-2. 5. Before a special court-martial on or about 30 November 1971, in the Federal Republic of Germany, the applicant was found of: * willfully disobeying a lawful order from his superior commissioned officer, on or about 4 August 1971 * willfully damaging by force military property of the United States Government, on or about 6 August 1971 * wrongfully appearing in an improper uniform, on or about 4 August 1971 * failing to go to his appointed place of duty at the prescribed time, on or about 2 September 1971 * willfully disobeying a lawful order from his superior noncommissioned officer, on or about 7 September 1971 * willfully disobeying a lawful command from his superior commissioned officer, on or about 2 September 1971 * operating a government vehicle in a reckless manner, on or about 1 September 1971 6. The applicant's sentence included confinement at hard labor for two months. His sentence was approved on 21 January 1972 and was ordered duly executed, except for that portion providing for confinement in excess of 35 days; it was suspended until 31 May 1972, unless sooner vacated. 7. The applicant service record show his commander initiated a DA Form 268 (Report for Suspension of Favorable Personnel Actions) on 8 February 1972, for his pending punishment under Article 15, for failing to obey a lawful order from a commissioned officer. 8. Special Court-Martial Orders Number 4, issued by Headquarters, 56th Artillery Brigade on 18 February 1972, vacated the applicant’s unexecuted portion of his confinement to hard labor for two months. 9. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 24 April 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. His DD Form 214 further shows he was issued a DD Form 258A (Undesirable Discharge Certificate) and his service was characterized as UOTHC. 10. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 11. During the applicant's separation processing, he stated on his Standard Form 93 (Report of Medical History) that he was in good health except for his left knee [operation]. The examining physician subsequently qualified him for separation. His records are void of evidence that shows he suffered from a medical condition of such severity that either made him unfit for retention in accordance with Army Regulation 40-501 (Standards of Medical Fitness), or that warranted his referral to the Army Physical Disability Evaluation System. 12. The applicant applied to the ABCMR for an upgrade of his UOTHC discharge; however, the Board denied his request on 20 June 2019. 13. The Board should consider the applicant's provided 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 outcome of court-martial, the absence of a separation packet and his discharge under the provisions of Chapter 10 as the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the applicant’s misconduct; he 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 to amend the decision of the ABCMR set forth in Docket Number AR20170013687 on 20 June 2019. 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. 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 under other than honorable conditions is normally considered appropriate. 2. 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) AR20190012410 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012410 6 ABCMR Record of Proceedings (cont) AR20190012410 5