ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 6 April 2020 DOCKET NUMBER: AR20190014369 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge (UOTHC) to a general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .DD Form 214 (Certificate of Release or Discharge from Active Duty) for periodending 11 July 1983 .Texas Drug Offender Education Program, dated 31 January 2009 .Pastor Appointment, dated 7 August 2015 .Howard Payne University Unofficial Transcript, dated 11 May 2019 FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states he became addicted to drugs while on active duty in Germany.This was the underlining problem that led to his misconduct. He was never given oroffered any help and his condition worsened. Like many other Soldiers, he was sentback stateside with no treatment for his condition. His life has changed and he asks theBoard to take that into consideration. He serve as a pastor and would like to correctthis. He has obtained his bachelor degree and is currently working on his masters. Heis praying that the Board will consider his request for an upgrade to a general. Hebelieves that at the time of his addiction the Army was unfamiliar with treatment for thedisease. He is now a pastor and a taxpayer and with proper treatment, he has rebuilthis life. 3.On 6 June 1978, at the age of 22 years old, the applicant enlisted in the RegularArmy for a term of 4 years. 4.He record shows while in advanced individual training (AIT) at Fort Benning, GA, heaccepted nonjudicial punishment (NJP) on 19 September 1978 for wrongful possessionof 0.36 grams more or less of marijuana. 5.On 20 September 1978, he was assigned to Fort Carson, CO and on 21 December1979, he accepted NJP for without authority failing to go from your appointed place ofduty. On 29 June 1981, he was assigned overseas to Germany. 6.On 19 February 1981, he was convicted by special court-martial for twospecifications of larceny; he stole the wallets of two individuals, one with the content ofa value of $8.30 and the other of $40.00. He was sentenced to reduction to Private E-1, forfeiture of $200.00 pay per month for two months, and to be confined at hard laborfor 45 days. On the same date, he was assigned to the U.S. Army Confinement Facilityin Mannheim, Germany. On 3 March 1982, he was reassigned to the U.S. ArmyRetraining Brigade, Fort Riley, KS. On 17 March 1982, the sentence was approved andordered executed. On 26 March 1982 he was released from confinement. On 12 May1982, the unexecuted portion of the sentence of forfeiture of $200.00 was remitted. 7.On 30 September 1982, the applicant extended his 4-year enlistment of 6 June 1978for a period of 9 months to make his term of enlistment a total of 5 years. 8.On 20 August 1982, the applicant’s immediate commander issued him a letter ofreprimand for voyeurism. The commander stated that he completed his investigationand the victim physically identified him as the person who committed the offense. Hewould not tolerate such behavior and further such behavior would result in him beingcourt-martialed and discharged from the Army under the provisions of Army Regulation(AR) 635-200 (Personnel Separations – Enlisted Personnel). 9.On 18 April 1983, his status changed from present for duty to confined by civilauthorities. He was convicted of aggravated burglary, miscellaneous theft, andmiscellaneous battery and confined at the Geary County Jail, Junction City, KS as aresult of trial. He was sentenced to imprisonment from 4 to 10 years. 10.On 27 April 1983, the applicant’s immediate commander signed a notification thatseparation had been recommended against the applicant; however, there is noindication that the applicant received the notification since he was confined by civilauthorities at the time. By memorandum, dated 23 May 1983, the applicant’s immediatecommander notified the applicant that he was withdrawing his recommendation that hebe eliminated under AR 635-200, paragraph 14-5(b), for conviction by civil authoritiesand recommend that he be eliminated under paragraph 14-12b, a pattern of misconductand paragraph 14-12c, commission of a serious offense. The reasons for his proposedaction was that the applicant demonstrated a pattern of misconduct consisting ofdiscreditable involvement with civil and military authorities and due to his commission of serious offenses as described at enclosure 1. His case was suspended until 27 June 1983, to give the applicant the opportunity to exercise his rights. 11.Enclosure 1, FB Form 55 (Discharge –– Separation Under the Provisions of AR635-200) states: a.The reasons for the specific criteria used to determine the applicability of AR635-200, paragraphs 14-12b and 14-12c: On 19 February 1982, he was court-martialedfor robbery, two counts (Special Court-Martial Convening Order Number listed thecharge as larceny). On 20 August 1982, he received a letter of reprimand. On31 January 1983, the civil authorities in Junction City, KS, charged him with aggravatedburglary and rape (the original charges were not a part of the record but there is nomention of rape in the record; it shows he was convicted of battery). On 31 January1983, the unit conducted a urinalysis sweep and the results showed he was positive formarijuana. On 31 March 1983, he plead guilty to two charges. On 18 April 1983, hewas sentenced to 4 to 10 years for aggravated burglary, miscellaneous theft, andreceived concurrent 6 months for miscellaneous battery. b.Recommend counseling requirement be waived because he was reprimandedand advised that further occurrences of misconduct would result in separation. He chose not to heed this advice and continue to engage in acts of misconduct. c.Recommend rehabilitation requirement be waived because he was beyondrehabilitation. He was court-martialed and went through the rehabilitative steps of Fort Riley, KS. He chose to go a different route than that of rehabilitation. Further steps to rehabilitate him would be a waste of time. Disposition by other means was not appropriate because he was in civil confinement. 12.By memorandum, subject: Discharge UP Chapter 14, AR 635-200 (Applicant),dated 1 July 1983, the immediate commander states on 27 April 1983, he personallydelivered to the applicant, then being held by Geary County authorities the notificationof his intention to recommend him for discharge under AR 635-200, paragraph 14-5.On 24 May 1983, he personally delivered notice to the applicant of his intent torecommend him for discharge under AR 635-200, paragraphs 14-12b and 14-12c. Hewas instructed, in writing, to respond no later than 27 June 1983 and he acknowledgedreceipt. The applicant did not respond by the suspense date. 13.The intermediate commander recommended approval of his separation under AR625-200, paragraphs 14-12b and 14-12c. The Staff Judge Advocate reviewed theseparation packet and recommended that the approving authority approved theseparation under AR 635-200, paragraph 14-12c. On 5 July 1983, the appropriateauthority approved the separation under AR 635-200, paragraph 14-12c and directed hebe furnished an under other than honorable conditions discharge certificate. 14.On 11 July 1983, he was discharged accordingly. His service was characterized asunder other than honorable conditions. He completed 4 years, 9 months, and 6 daysnet active service this period, with 120 days lost time. His DD Form 214 shows he wasawarded or authorized: .M16 Rifle Sharpshooter Marksmanship Qualification Badge .Hand Grenade Expert Marksmanship Qualification Badge .Good Conduct Medal 15.The record is void of a separation medical examination and a mental statusevaluation. 16.The applicant provides: .Texas Drug Offender Education Program, dated 31 January 2009, which showshe completed the program regulated by the Texas Department of State HealthServices .Pastor Appointment, dated 7 August 2015, which shows he was appointed by theChurch of God in Christ, Incorporated .Howard Payne University Unofficial Transcript, dated 11 May 2019, which showshe was awarded his Bachelors of Applied Arts and Science Degree 17.The applicant states he was addicted to drugs while on active duty in Germany.This was the underlining problem that led to his misconduct. He was never given oroffered any help and his condition worsened. Like many other Soldiers, he was sentback stateside with no treatment for his condition. His life has changed and he asks theBoard to take that into consideration. His record shows he enlisted at the age of22 years old; he accepted two NJPs, one for being in possession of marijuana; he wasconvicted by special court-martial for larceny; he received a letter of reprimand forvoyeurism, he was convicted by civil court of theft, aggravated burglary, and battery,and sentenced to 4 to 6 years imprisonment; and he had 120 days lost due tomilitary/civilian confinement. His record does not show any evidence that he wasreferred to or enrolled in the Army Drug and Alcohol Prevention and Control Program(ADAPCP). He completed 4 years, 9 months, and 6 days of his 5-year contractualobligation. a.Army regulations governing Army Drug and Alcohol Prevention and ControlProgram provides the objective of rehabilitation for military personnel was to restore identified individuals to effective duty and identify individuals who cannot be rehabilitated within the scope of this regulation. Commanders were to initiate separation for those members who failed to rehabilitate. Separation of soldiers under the provisions of Army Regulation 635-200, Chapter 9 were normally characterized as honorable or under honorable conditions (general). b.Chapter 9 prescribed the procedures for discharging Soldiers because of alcoholor other drug abuse. A member who has been referred to the Army Drug and Alcohol Prevention and Control Program for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. c.AR 635-200, Chapter 14 (Separation for Misconduct) was separation of variousmisconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case (1)Section II (Conviction by Civil Court) paragraph 14-5 was a separation ofSoldiers who were initially convicted by a civil authorities, or action is taken which is tantamount to a finding of guilty of an offense for which a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM)1969 (Revised), or the sentence by civil authorities included confinement for sixmonths or more. (2)Paragraph 14-12b, was a separation for a pattern of misconduct consisting ofdiscreditable involvement with civil or military authorities and conduct prejudicial to good order and discipline. (3)Paragraph 14-12c, was a separation for commission of a serious offense, ifthe specific circumstances of the offense warrant separation and a punitive (bad conduct or dishonorable) discharge would be authorized for the same or a closely related offense under the MCM. d.Per the Manual for Courts-Martial 1969, the maximum punishment for Article 121–Larceny, Article 128 – Assault Consummated by Battery, Article 129 – Burglary, and;Article 134 – possession or use of marijuana authorized a punitive discharge. At thetime there was no charge specifically related to voyeurism in the MCM; however, it wasroutine for charges omitted in the MCM to be covered by a general regulation. Manualfor Courts-Martial, 2019, shows the maximum punishment for Article 120c – Indecentviewing, otherwise known as voyeurism, maximum punishment authorizes a punitivedischarge. 18.In reaching its determination, the Board can consider the applicant's petition and hisservice record in light of the published DOD guidance on equity, injustice, or clemency.BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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. The Board found insufficient evidence of in-service mitigating factors for the serious misconduct. The Board considered the applicant provided documents, but found no letters of reference and the found the evidence of post-service achievementsinsufficient to weigh 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX :XXX :XXX 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. X CHAIRPERSON 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 militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so. 2.Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program(ADAPCP) governs the Army's ADAPCP, policies and responsibilities. It provides: a.When individuals are identified, voluntarily or involuntarily as possible alcohol orother drug abusers, the unit commander or designated representative will advise them of their rights, explain provisions of the limited use policy, interview and inform them of the evidence, give them an opportunity to provide additional evidence, including information on drug sources, if they desire. Such disclosure is strictly voluntary, collect any drugs or paraphernalia voluntarily relinquished and turn them over to the provost marshal and refer all suspected individuals identified, to include through urinalysis and blood alcohol test to the alcohol drug abuse prevention control program (ADAPCP). b.The initial screening interview will be accomplished by the ADAPCP staff. Limiteduse provisions are unchanged by the mandatory separation processing of drug abusers according to Army Regulations 635-100 and 635-200. If after the initial screening the commander believes a soldier would not respond to rehabilitation or based on the soldiers record does not have the potential for future service considered and processed for separation (other than chapter 9) according to Army Regulations 635-100 or 635-200. c.The ADAPCP counselor will inform the soldier of the limited use policy anddetermine if a medical evaluation is required. A medical evaluation is required of illegal drug abusers for positive tests other than cannabinoids (THC). The soldier or commander may request a medical evaluation by a physician at time to determine the extent of alcohol or drug abuse by a soldier. Medical evaluations determine whether serious medical illness is indicated due to alcohol or drug abuse. d.As soon as possible after the ADAPCP initial screening is completed, the team, ata minimum, composed of the soldier, his commander/designee and the ADAPCP counselor will convene. The ADAPCP counselor will recommend the appropriate disposition of the referral. One of the following or a combination of the following will be recommended: . Unit counseling by commander/designated representative . Other action (for example, no referral to other agency) . No ADAPCP services required at the present time . Enrollment in an active rehabilitation program 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. Chapter 9 prescribed procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. However, an honorable discharge is required if restricted-use information was used. e. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. (1) Section II (Conviction by Civil Court), paragraph 14-5 was a separation for Soldiers who were initially convicted by a civil authorities, or action is taken which is tantamount to a finding of guilty of an offense for which a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial 1969 (Revised), as amended, or the sentence by civil authorities included confinement for six months or more (2) Paragraph 14-12b, a pattern of misconduct, provided for the separation of a Soldier due to discreditable involvement with civil or military authorities and conduct prejudicial to good order and. discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. (3) Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM. 4. The Manual for Courts-Martial, United States, 1969 (Revised Edition) Table of Maximum Punishments showed Article 121 – Larceny, Article 128 – Assault Consummated by Battery, Article 129 – Burglary, and; Article 134 – possession or use of marijuana authorize a punitive discharge. At the time there was no charge specifically related to voyeurism in the MCM; however, it was routine for charges omitted from the MCM to be covered by a general regulation. Manual for Courts-Martial, 2019, shows the maximum punishment for Article 120c – Indecent viewing, otherwise known as voyeurism, maximum punishment authorizes a punitive discharge. 5. 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. 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, BCM/NRs 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//