BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20200000810 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) * Self-written statement * Police of Puerto Rico Negative Certificate of Penal Record * Character reference letters * Criminal Investigation Division (CID) Report of Investigation documents * Agent’s Investigation Reports * Criminal Investigation Laboratory Reports * Field Test Analysis on Non-Narcotic Substances document * Rights Warning Procedure/Waiver Certificates * Chain of Command recommendations for Special Court-Martial * Charge Sheet of preferred court-martial charges * Headquarters U.S. Army Transfer Point, Oakland Army Base letter, Subject: Reason for Separation * UOTHC Discharge Certificate 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. The applicant states: a. He was wrongly accused of dealing with drugs on 29 January 1979. He further described where he attended training and his time spent with the 82nd Airborne, Fort Bragg, NC. He thought he was going to have a military career. However, because of an unintentional error, he was separated from the military service. A colleague asked him to do a favor and deliver a package to a person, unaware of what it contained. He just delivered the package, receiving nothing in return. He was not charged, but he had to leave the military service. This shattered his hopes that he had of military service. b. He has tried to forget the incident, so much so that he does not discuss it with anyone, not even with his immediate family. He never commented on it for shame, for fear of rejection and fear of being judged. He was used. He has had countless operations on his feet and knees. His shoulders they have not wanted to operate despite the conditions that are reflected. The doctors tell him that they are the effects of the runs he made in the military. These conditions do not allow him to do his job and his daily life to capacity. It is affecting him to the extreme that he does not sleep well and it causes him anxiety. 3. On 14 July 1976, the applicant enlisted in the Regular Army for a period of 3 years. On 24 August 1978, he extended his 3 year enlistment for a period of 3 months to meet the service remaining requirement for overseas assignment. 4. The applicant provided documents that show: a. On 7 December 1978, he wrongfully possessed and sold methamphetamine. He also conspired with Specialist Four PJP-G Jr. to sell this methamphetamine. b. A Field Test Analysis on Non-Narcotic Substances reflected that the test results indicated a positive reaction to methamphetamine. c. On 18 December 1978, a laboratory report reflected that the suspected methamphetamine purchased on 7 December 1978 was in fact methamphetamine. d. On 6 February 1979, a final CID Report of Investigation disclosed he did conspire to sell methamphetamine and sold methamphetamine to an informant. e. On 26 February 1979, court-martial charges were preferred against him for: * wrongfully possessing methamphetamine * wrongfully selling methamphetamine * wrongfully transferring methamphetamine * giving methamphetamine to an informant * conspiring to give methamphetamine to an informant 5. Military Personnel Center Korea Orders 87-245 reduced the applicant from special four (E-4) to private one (E-1) effective 21 March 1979. 6. On 29 March 1979, the applicant was medically cleared for administrative separation actions. 7. On 4 April 1979, he indicated there had been no change in his medical condition. He was also notified the reason for his separation from active duty was “administrative discharge – conduct triable by court-martial,” the regulatory or statutory authority for separation was “discharge for the good of the service,” and he was being issued an UOTHC discharge. 8. The applicant’s record did not contain a complete discharge packet; however, his record contained a DD Form 214 that shows he was discharged on 4 April 1979 under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), based on conduct triable by court-martial for the good of the service. He was issued an UOTHC Discharge Certificate, and he completed 2 years, 8 months, and 21 days of net active service. The applicant was awarded or authorized the: * Parachutist Badge * Expert Marksmanship Qualification Badge with Rifle Bar 9. In support of his case, the applicant provided multiple documents described in the above record of proceedings. He also provided a Police of Puerto Rico Negative Certificate of Penal Record and character reference letters. In pertinent part, the letters state the applicant is trustworthy, honest, and was admired for his willingness to work hard and performing his job excellently. The applicant always demonstrated professionalism as a Soldier, and it was shown by his personal appearance in uniform and sharp haircuts. The applicant was a person of sincerity and was dedicated always to looking out for others in need of help. 10. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 11. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 in lieu of trial by court-martial for the good of the service. 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, an undesirable discharge was normally considered appropriate at the time. 12. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service or post-service mitigating factors 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. 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. 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 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases based on the evidence of record. It is not an investigative agency. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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 in lieu of trial by court-martial for the good of the service. 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, an undesirable discharge was normally considered appropriate at the time. a. 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 b. 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. 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. 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// ABCMR Record of Proceedings (cont) AR20200000810 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000810 6 ABCMR Record of Proceedings (cont) AR20200000810 5