BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20190012526 APPLICANT REQUESTS: In effect, reconsideration of his earlier request for correction of his DD Form 214 (Report of Separation from Active Duty) to show his service is characterized as honorable in in lieu of under other than honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Review of Staff Judge Advocate * Medical Examination * Report of Medical History 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC81-04715 on 10 June 1981. 3. The applicant states the Review of the Staff Judge Advocate, dated 25 March 1975, clearly shows there was no psychiatric evaluation performed. At the court-martial, both of his commanders stated they knew he had a substance abuse problem. The military judge sought the truth that his drug addiction led to the offense of wrongful sale of heroin (.53 grams) to support his problem. No type of drug rehabilitation program was offered to him. He was sent to Fort Leavenworth, KS for 9 months and released with his drug addiction. He believes his bad conduct discharge (BCD) should be upgraded due to: * creditable service of 33 months * character of service was excellent * his medical records * the fact that he was examined for separation under a chapter 13, on 13 November 1974 * he qualified for expiration term of service (ETS) 4. The applicant's service record shows on 27 June 1972, he enlisted in the Regular Army for 3 years. He held military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic). He was assigned to Germany from 21 November 1972 to 10 January 1975. 5. Records of Proceedings Under Article 15, Uniform Code of Military Justice, show he received nonjudicial punishment (NJP) between January 1973 and May 1974, for the following reasons on: * 24 January 1973, for operating a military vehicle without a valid operator’s license; his punishment consisted of a forfeiture of pay and reduction from pay grade E-2 to pay grade E-1 (suspended for 30 days) * 7 February 1973, the above suspension was vacated and the applicant was reduced to pay grade E-1 [for unknown reasons] * 14 January 1974, for driving his privately owned vehicle over the prescribed speed limit and for wrongful appropriation of U.S. Army Europe (USAREUR) license plates; his punishment consisted of extra duty, restriction, a forfeiture of pay, and reduction from pay grade E-3 to pay grade E-2 * 9 April 1974, for being absent from his place of duty on 6 April 1974 (twice); his punishment consisted of extra duty and restriction * 15 May 1974, for being disrespectful in language toward a staff sergeant by using profanity toward him and for failing to obey an order to come out of the truck (both on 6 April 1974); his punishment consisted of extra duty, restriction, a forfeiture of pay, and reduction to pay grade E-1 6. On 20 June 1974, a bar to reenlistment was initiated against the applicant based on the above NJP. Additionally, his commander stated the applicant was an immature, highly emotional Soldier. He was substandard in appearance and performance. He did accept supervision and he was constantly disrespectful to superiors. He had been counseled by many members of his chain of command on his unsatisfactory attitude, appearance, and performance, but all attempts to rehabilitate him had been to no avail. The applicant did not provide a statement or appeal the bar. 7. On 27 June 1974, the bar to reenlistment was approved. 8. The applicant’s medical examination, dated 13 November 1974, shows initially, he was examined for the purpose of separation under the provisions of chapter 13, Army Regulation (AR) 635-200, due to unsatisfactory performance. His medical examination shows he was qualified for ETS. No psychiatric evaluation is available. 9. His Report of Medical History shows he annotated this document “Yes,” to show he had eye trouble, venereal disease, recent gain or loss of weight, adverse reaction to serum, drug or medicine, broken bones, and an inability to perform certain motions. He was also near sighted. 10. The applicant's record does not contain all of the facts and circumstances surrounding the discharge process. However, the record does contain a/an: a. Review of the Staff Judge Advocate, showing on 17 March 1975, at Kaiserslautern, Germany, the applicant pled guilty, was found guilty, and was convicted of wrongfully selling .53 grams of heroin. He was sentenced to serve 9 months at hard labor and receive a BCD. His creditable service is listed [incorrectly] listed as 33 months, his character of service is listed as excellent. He had served 66 days in confinement awaiting a trial. b. Properly constituted DD Form 214 which shows he was discharged on 13 June 1975 under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, due to court-martial, other with an Under Other Than Honorable Conditions Discharge Certificate. It further shows that at the time he had completed 2 years, 4 months, and 12 days of total active service with 155 days of lost time due to being in confinement. His awards are listed as the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar. 11. His record also contains an ABCMR Memorandum of Consideration, dated 10 June 1981, showing the applicant was sentenced to total forfeitures, confinement for 9 months, and a BCD. On 26 March 1975, the convening authority approved the findings and the sentence. On 23 April 1975, the Army Court of Military Review affirmed the findings and the sentence. 12. The applicant provides the Review of Staff Judge Advocate Document, Medical Examination, and his Report of Medical History that were a part of his separation processing. It appears, initially, he was being determined to be medically qualified for separation and he was being considered for separation under AR 635-200, chapter 13, due to unsatisfactory performance. But when he was convicted of the crime of selling heroin, he was no longer qualified for separation under this provision of the regulation. 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 11 of this regulation provided, in pertinent part, that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 14. Regarding his contention that his unit had knowledge of his addiction and he was never offered treatment; he sold drugs to support his addiction. There is nothing in the available record to indicate the applicant’s chain of command knew that he was addicted to drugs. There is no evidence that he ever tested positive for drugs or was identified as a drug abuser until he was caught selling heroin. 15. Regarding his contention that he had 33 months of creditable service and his character of service was excellent. a. The time that he spent in confinement (155 days) was not good service. He completed 2 years, 4 months, and 12 days of creditable active service. The 155 days he spent in confinement is counted as lost time. b. Prior to the court-martial conviction, a bar to reenlistment was approved against him for various forms of misconduct and he was being considered for separation, due to unsatisfactory performance. 16. In reaching its determination, the Board can consider the applicant’s contention that he sold drugs to support his addiction, his unit had knowledge of his addiction and he was never offered treatment, in addition to his petition, and his service record in accordance with the published equity, injustice, or clemency 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, a bar to reenlistment, a medical review in conjunction with a separation action, a court-martial conviction and the reason for his separation. 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 : 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 to amend the decision of the ABCMR set forth in Docket Number AC81- 04715 on 10 June 1981. 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 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 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 of that regulation provided, in pertinent part, that a member will be given a BCD pursuant only to an approved sentence of a general or special court- martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. b. 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. c. 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. 3. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. The ABCMR is not empowered to set aside a conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 4. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012526 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012526 7 ABCMR Record of Proceedings (cont) AR20190012526 5