BOARD DATE: 4 September 2020 DOCKET NUMBER: AR20200002072 APPLICANT REQUESTS: The applicant requests an upgrade of his undesirable discharge to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) FACTS: 1. The applicant states: a. He was a young Soldier that made a bad mistake. He was hanging around a lot of people he should not have been. He loved his country and he wanted to serve. He was just in the wrong place at the wrong time. b. While he was in the service in Korea, he was put in the motor pool and he was not doing his military occupational specialty (MOS). He was hanging around a lot of people from New York, Chicago, and Los Angeles. Those guys were planning urban warfare against the troops in Korea. He did not want any part of it. So one night he was in a nightclub where a fight took place. He was headed back to post and was detained and taken to the PMO (Provost Marshal's Office). He explained to them that they had the wrong person that started the fight. He was sent to the stockade and was discharged after only 4 months of being there. He wanted to serve his country for 20 years and retire. He would like for the Board to upgrade his discharge. He has lived with this for 45 years, and he does not talk about it. 2. On 26 July 1972, the applicant was 18 years old and enlisted in the Regular Army for a period of 3 years. He completed training requirements and was awarded MOS 05B20 (Radio Operator). He was assigned to Korea on or about 20 January 1973. 3. His record contained witness statements and Korean National affidavits that state, in pertinent part, a group of “negro males” assaulted RJD. The assault lasted a few minutes then the group fled. Several Korean Nationals indicated they had witnessed the assault by the group. 4. On 21 January 1973, Sergeant DKC (Military Policeman) stated that, while assisting in an apprehension of two suspects for an aggravated assault, he came in contact with the applicant. After the applicant had been apprehended he conducted a search of his person. Sergeant DKC discovered a tobacco pouch, yellow in color, in the right interior pocket of a jacket worn by the applicant. Upon examination of the pouch, it contained a greenish brown substance which he believed was marihuana. Sergeant DKC confiscated the pouch and later released it to the Criminal Investigation Division. 5. On the same date, the applicant was made aware of his rights. He indicated he did not want to give up his rights. He further indicated that he wanted a lawyer and did not want to be questioned or say anything. 6. On 30 January 1973, after an examination and analysis, a United States Army Criminal Investigation Laboratory (USACIL) Report found that the clear yellow plastic tobacco pouch containing vegetable matter discovered in the right interior pocket of a jacket worn by the applicant contained the presence of marihuana (cannabis sativa). 7. On 16 March 1973, a final CID Report of Investigation disclosed the applicant was apprehended as a suspect for an assault of Private RJD. A subsequent search of the applicant revealed that he was in possession of a pouch containing marihuana. There was insufficient evidence to prove or disprove that the applicant assaulted Private RJD. 8. On 2 April 1973, Second Lieutenant (2LT) MPD submitted a witness statement. In pertinent part, he stated while conducting a joint club inspection, he exited the rear door of the New Seoul Club, and observed the applicant filling a pipe from a tobacco pouch. As he confronted the applicant, he attempted to dispose of the pipe and pouch by dropping the pipe and throwing the pouch over a door into a latrine. Both the pipe and the pouch were retrieved and confiscated as evidence. 9. On 6 April 1973, after an examination and analysis, a USACIL Report found that, the black tobacco pouch containing vegetable matter and the wood-and-metal smoking pipe contained the presence of marihuana (cannabis sativa). 10. On 19 April 1973, a witness statement by a CID agent indicated the applicant orally admitted that when 2LT MPD exited the club, he was filling a pipe from a tobacco pouch containing marihuana and that he attempted to dispose of the items. The applicant also stated that the pipe and tobacco pouch did not belong to him and declined to reduce his oral statement to writing. 11. On 26 April 1973, a final CID Report of Investigation disclosed that, on 29 March 1973, in the rear of the New Seoul Club, Korea, the applicant was observed filling a pipe from a tobacco pouch containing marihuana. He attempted to dispose of the pipe and pouch by throwing them away, however, they were retrieved and confiscated by 2LT MPD. 12. On 4 May 1973, a Report of Medical Examination and Mental Status Evaluation cleared the applicant for chapter 13 administrative separation proceedings. 13. His record contained a Personal History Statement of Accused completed on 15 May 1973. In pertinent part, his commander stated: a. The applicant resented authority, did not follow orders, was disrespectful toward all noncommissioned officers (NCO), talks back, and parades his disrespect in front of other enlisted members in the billets and even in formation. b. His attitude toward commissioned officers was disrespectful, he disobeyed orders, and he talked back. He resented officers’ efforts toward counseling. He would not listen to reason. He had been openly disrespectful toward his battery commander during formations and counseling. c. The applicant had a history of poor conduct and poor duty performance. Absence of non-judicial punishment was the result of giving him every break. He had been assigned to the “commo” platoon, Division Artillery S-3 section, and motor shop. He responded negatively to every NCO and officer in each job. His constant shirking of duty performance and blatant disrespect toward those NCO's and officers responsible for supervising him have led toward court-martial charges. He was a known, admitted user of marijuana. He disobeyed the pass policy, broke restriction, and is now in violation of arrest-in-quarters. His commander strongly urged that the applicant be eliminated as all efforts towards rehabilitation had failed. 14. On an unknown date, the applicant’s commander recommended that he be required to appear before a board of officers convened under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for the purpose of determining whether the applicant should be discharged before expiration of term of service. An undesirable discharge was recommended. The specific reason for recommending the applicant’s discharge was based on frequent incidents of a discreditable nature with civil or military authorities, drug offenses, and an established pattern for shirking. a. Discharge was recommended for complete disregard for military authority. The applicant was charged with possession of marijuana on two (2) different occasions. He was absent or late for duty on numerous occasions and once disobeyed a lawful order from a NCO. The applicant had been counseled on multiple occasions for: * possession of marijuana * unsatisfactory job performance on 4 occasions * being late for duty * possible elimination for service * his attitude b. His chain of command recommended approval of his separation with the issuance of an Undesirable Discharge Certificate. c. On 24 May 1973, the Office of Staff Judge Advocate (OSJA) found the separation proceedings to be legally sufficient and recommended that the proposed elimination be approved. The OSJA further indicated the applicant had been counseled by a qualified attorney and had elected to waive a hearing before a board of officers. The applicant declined to submit statements in his own behalf. d. The separation authority approved the applicant’s discharge for unfitness under the provisions of chapter 13, AR 635-200, and directed the issuance of an Undesirable Discharge Certificate and reduction of the applicant to the grade of private (E-1). The requirements for further counseling and rehabilitation were waived. 15. On 5 June 1973, the applicant was discharged accordingly. He completed 10 months and 10 days of net service. His DD Form 214 also shows his character service listed as “under conditions other than honorable” and he was issued an Undesirable Discharge Certificate. 16. On 13 January 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge. The ADRB determined that he was properly discharged. 17. Army Regulation 635-200, chapter 13 provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities, drug abuse, and for an established pattern of shirking. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 18. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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, 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 mitigating factors 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. 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 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. The regulation provided, in pertinent part: a. An individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug abuse or the unauthorized use or possession of habit- forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 3. 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) AR20200002072 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002072 7 ABCMR Record of Proceedings (cont) AR20200002072 6