BOARD DATE: 24 April 2020 DOCKET NUMBER: AR20200001267 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 11 September 2019 * DD Forms 4 (Enlistment Contract – Armed Forces of the United States), for his enlistments on 14 August 1974 and 29 August 1974, with allied documents * Specials Orders Number 336, issued by Headquarters, U.S. Army Europe and Seventh Army on 2 December 1975 * DA Form 2496 (Disposition Form) Request for Promotion to E-5, dated 20 September 1976 * Memorandum, dated 7 October 1976, subject: Promotion Board Results, Department of the Army, 3rd Medical Battalion, 3rd Infantry Division * DA Form 2166-5 (Enlisted Evaluation Report), dated 9 February 1977 * DA Form 4465 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Military Client intake and follow-up Record, dated 9 March 1977 * DA Form 3349 (Medical Condition–Physical Profile Record), dated 9 March 1977 * Orders Number 102-43, issued by the U.S. Army Regional Personnel Center – Aschaffenburg on 28 April 1977 * Order Number 30-3, issued by Headquarters, U.S. Army Area Confinement Facility, Mannheim on 9 May 1977 * DA Form 3949 (Controlled Substance Record), dated October 1977 * DA Form 2-1 (Personnel Qualification Record – Part II) * DA Form 2 (Personnel Qualification Record) * General Court Martial Order (GCMO) Number 36, issued by Headquarters, 3rd Infantry Division on 9 June 1977 * Appellate of Military Review, issued by the U.S. Court of Military Review on 9 November 1977 * DA Forms 428 (Application for Identification Card), dated 25 November and 13 December 1977 * DA Forms 31 (Request and Authority for Leave), dated 31 December 1977, 2 February 1978, and 9 March 1978 * Request for Discharge for the Good of the Service, dated 15 February 1978, with allied documents * Order Number 45-5, issued by the United States Disciplinary Barracks, Fort Leavenworth, KS on 9 March 1978 * Memorandum, dated 22 March 1978, subject: Request for Discharge for the Good of the Service * General Court Martial Order Number 25, issued by Headquarters, 3rd Infantry Division on 31 March 1978 * Order Number 183-4, issued by the United States Disciplinary Barracks, Fort Leavenworth, KS on 25 September 1978 * Memorandum from the Assistant Adjutant, United States Disciplinary Barracks, Fort Leavenworth, KS, dated 16 January 1979 * DD Form 214 (Report of Separation from Active Duty), for the period ending 6 July 1979 * employment resume * three third-party character reference letters * Memorandum from the office of the applicant's Member of Congress, dated 12 September 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 wants his discharge upgraded to a general discharge. He feels he has paid for what he did and he wants to have his past corrected. He was a good Soldier and he only had one negative incident. 3. The applicant enlisted in the Regular Army on 29 August 1974. Following the completion of his initial entry training, he was reassigned for overseas duty in the Federal Republic of Germany. He was assigned to Company C, 3rd Medical Battalion, 3rd Infantry Division. He was promoted to the rank/grade of specialist four (SP4)/E-4 on 2 December 1975. 4. The applicant was referred to complete a DA Form 4465 (ADAPCP Military Client Intake and Follow-Up Record) on 9 March 1977, wherein he listed his drug usage. A DA Form 3349 (Medical Condition – Physical Profile Record), dated 9 March 1977, noted he had emotional and attitudinal problems that could compromise his judgement and reliability, due to adjustment problems that required transitional support through the local Community Drug and Alcohol Assistance Center (CDAAC). 5. Before a general court-martial on or about 25 April 1977, at Aschaffenburg, Federal Republic of Germany, the applicant was found guilty of wrongfully possessing and selling 200 grams, more or less of marijuana in a hashish form, on or about 2 March 1977. The court sentenced him to hard labor for three years, forfeiture of all pay and allowances, and separation from service with a Bad Conduct Discharge. A modified sentence was approved on 9 June 1977 and the record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. The U.S. Army Court of Military Review reviewed the findings and sentence in the applicant's case on 9 November 1977, and finding error in the court-martial process, set aside the approved sentence but authorized the applicant's retrial at a later date. 7. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 8. The applicant consulted with legal counsel on or about 15 February 1978. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised that he could submit any statement he desired in his own behalf. His election shows he declined to submit a statement in his own behalf. 9. The separation authority approved the applicant's request for discharge on 22 March 1978, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court martial and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 10. General Court-Martial Order Number 25, issued by the Department of the Army, Headquarters, 3rd Infantry Division on 31 March 1978, noted that the applicant’s charges and specifications were set aside on 9 November 1977, for re-trial at a later date. However, since the applicant had requested discharge under the provisions of Army Regulation 635-200, Chapter 10, and since the applicant's request had been approved by the separation authority, the court-martial charges were dismissed. 11. The applicant was discharged on 6 July 1979, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued confirms he was reduced to the lowest enlisted grade and his service was characterized as UOTHC. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. The Board should consider the applicant's 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 a court-martial and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the serious misconduct. The Board considered the evidence of post-service conduct and letters of reference provided by the applicant. The Board majority found this evidence insufficient to grant clemency; one member determined that clemency was warranted. Based on a preponderance of evidence, the Baord majority 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 majority determined that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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. 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// ABCMR Record of Proceedings (cont) AR20200001267 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200001267 7 ABCMR Record of Proceedings (cont) AR20200001267 5