ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20200000532 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge; or alternately an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 28 October 2019 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 28 October 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 beat court-martial charges, and was found not guilty. But due to his not guilty verdict the Army came up with an Article 15. Thus he is requesting an upgrade, to be reconnected [presumably to mean, eligible for benefits]. 3. The applicant enlisted in the Regular Army on 18 July 1977; served through one enlistment; and reenlisted on 30 May 1980. He attained the rank/grade of specialist 5/SP5; and served in Germany from 14 July 1981 through 31 July 1983. 4. The applicant's commander notified him on 31 May 1983; he was initiating actions to separate the applicant from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct. As the basis for his actions, the commander cited the applicant's; * commission of a serious offense to wit: distribution, possessing and using marihuana (hashish); and * violation of his trust as a SP5 by commission of the above misconduct 5. The applicant's commander formally recommended the applicant's separation on 31 May 1983, under the provisions of Army Regulation 635-200, paragraph 14-12c - commission of a serious offense. The commander again cited the aforementioned reason for his request, and added the following statement: Commander's Summary of Misconduct: SP5 Sn_ was tried by general court-martial and found Not Guilty of 2 incidents of distribution and possession of hashish, on 9 December 1982 and on 15 January 1983. This proposed elimination, in no way, involves either of the above 2 incidents. Rather, the basis for this misconduct stems from an oral confession made to Criminal Investigation Division (CID), by Sn_, on 19 January 1983, in which SP5 Sn_ voluntarily admitted to having possessed and transferred hashish numerous times during calendar year 1982, usually in conjunction with deliveries made to him by sergeant (SGT) C_ B_, E Company 55th Maintenance Battalion. This confession was further corroborated by the sworn testimony of SP4 W_ J_ Si_ made to CID on 14 January 1983, where Si_ admitted to having purchased and smoked hashish with SP5 Sn_ in Sn_'s family quarters sometime in June – July 82. Finally, SP4 W_, HHSB, 1/41 FA, is available to further corroborate Sn_'s distribution and possession of hashish on dates never charged against Sn_ in his trial by court-martial on 13 May 83. 6. The applicant consulted with counsel on 3 June 1983, and acknowledged receipt of the notification memorandum. He requested representation by counsel; consideration of his case by a board of officers; a personal appearance before a board of officers; and elected not to submit statements in his own behalf. 7. An administrative separation board was appointed on 25 April 1983, tasked with considering his elimination from military service; the applicant appeared before the board with his counsel on 8 July 1983. After careful consideration of his case; the board found on 8 July 1983, the applicant was undesirable for further retention in the military service because of a serious offense; rehabilitation was not deemed possible. The Board recommended he be separated with an UOTHC discharge. 8. The separation authority approved the findings and recommendation for separation on 19 July 1983, under the provisions of Army Regulation 635-200, Chapter 14, due to commission of a serious offense, and directed the applicant receive a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 1 August 1983. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. His service was characterized as UOTHC. 10. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. After careful consideration, the ADRB denied his request on 13 April 1984. 11. The Board should consider the applicant's overall service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The Board carefully considered the applicant’s assertion that he was court-martialed and found not guilty and then given an article 15 (the applicant implies that the article 15 was given for the same offenses). The Board found the preponderance of the evidence indicates that the commander separated the applicant for a pattern of drug use and transfer and that the instances of drug use and transfer were separate and different from the evidence used in the applicant’s court martial trial. The record is void of and the applicant did not provide evidence, which may have provided independent corroboration of any administrative irregularity in the applicant’s separation. The Board further found insufficient evidence of mitigating circumstances or grounds for clemency for the serious misconduct. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate. 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. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 1 August 1983, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770718 UNTIL 800529 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 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 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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//