ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2021 DOCKET NUMBER: AR20210007393 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty) for period ending 19 May 1976 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 an upgrade is requested and the request is justified because the former President Jimmy Carter passed the law for Armed Forces personnel who had a bad discharge in the Vietnam war to give them opportunity to change his/her discharge for an honorable discharge. 3. On 15 July 1970, the applicant was inducted in the Army of the United States for a term of 2 years, at the age of 20 years. On 17 January 1972, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group, Saint Louis, MO, to complete his terminal service obligation of 14 July 1976. 4. On 4 June 1973, he enlisted in the Regular Army for a term of 3 years. 5. On 15 August 1973, the applicant was admitted to the U.S. Army Medical Center, Fort Gordon, GA, due to a laceration to the scalp that he received when he collapsed through hyper ventilation in his commanding officer's office in Fort Gordon, GA, while being questioned about an incident that took place in the barracks. He was diagnosed with syncope. A formal line of duty investigation was not required. 6. On 20 February 1975, he extended his enlistment for 2 months. His DA Form 3340 (Request for Regular Army Reenlistment or Extension) shows his immediate commander determined his efficiency was good and his conduct was excellent. Endorsement, subject: Request for Regular Army Reenlistment or Extension, dated 25 February 1975, shows the applicant required a waiver due to being absent without leave (AWOL) from 18 January 1975 to 20 January 1975 (3 days). At the time of his extension, he was assigned overseas in Germany. 7. On 20 December 1975, a U.S. Army Criminal Investigation Command (CID) investigation was initiated against the applicant and three other Soldiers for wrongful possession of controlled substances. a. The CID Report of Investigation Synopsis states he and another Soldier were jointly in possession of 2.41 grams of cocaine; 0.06 gram of heroin with caffeine mixture; 151 tablets of LSD (lysergic acid diethylamide); 441.68 grams of marijuana in the hashish form; 4 and a half Mandrax tablets, containing methaqualone; 1 phenobarbital tablet, 1 syringe with needle, which did not contain residue of any controlled substance, and 1 gram scale containing residue of marijuana in the hashish form. b. The Agent's Investigation Report revealed that the military police were dispatched to assist German Police in evicting American occupants from an apartment. When the German Police knocked on the apartment door, the policemen heard a lot of moving around and flushing of the toilet. When the policemen looked through the window they noticed what the occupants were doing. After gaining entry they the police retrieved a brown paper bag from two of the occupants, one being the applicant, which contained a large amount of narcotics. The occupants were apprehended. 8. On 11 February 1976, court-martial charges were preferred against the applicant for: a. Four specifications, in violation of Article 92, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation on 20 December 1975 (2 years, 5 months, and 27 days after enlistment), by wrongfully having in his possession * a hypodermic syringe and needle * 1 tablet of a controlled substance, to wit: phenobarbital * 151 tablets of a controlled substance, to wit: LSD b. Three specifications in violation of Article 134, UCMJ, for wrongfully having in his possession: * 0.06 grams, more or less, of a habit forming narcotic drug, to wit: heroin * 2.41 grams, more or less, of a habit forming narcotic drug, to wit: cocaine * 441.68 grams, more or less, of marijuana in the hashish form 9. On 4 March 1976, an Article 32(b) Investigation was convened to determine if the applicant's case should be tried a general court-martial. The investigating officer recommended trial by general court-martial (summary of proceedings are available). 10. His record is void of a request for Army Regulation (AR), chapter 10, discharge for the good of the service. His record shows: a. By endorsement, 29 April 1976, subject: Request for Discharge for the Good of the Service, the appropriate separation authority approved the applicant's request for discharge under AR 635-200, chapter 10. He directed the applicant be reduced to Private E-1 and issued an Undesirable Discharge Certificate. b. On 25 March 1976, the applicant underwent a separation medical examination and the purpose of the examination was for Army Regulation (AR) Chapter 10. c. DD Form 214, which shows on 19 May 1976, he was discharged under AR 635- 200, chapter to for reason conduct triable by court-martial. His service was characterized as UOTHC. He completed 2 years, 11 months, and 13 days of his 3-year and 2-month contractual obligation, with 1 year, 6 months, and 16 days Foreign Service. He had 3 days lost time and he was awarded or authorized: * National Defense Service Medal * Army Good Conduct Medal 11. Office of the Adjutant General Reserve Component Personnel and Administration Center, Saint Louis, MO, Letter Orders Number 06-1122077, dated 23 June 1976, shows the applicant was honorably discharged from the U.S. Army Reserve Control Group Standby. 12. The applicant requests an upgrade. He states he makes the request based on the former President Jimmy Carter passing a law which gave Armed Forces personnel who had a bad discharge in the Vietnam war an opportunity to change their discharge for an honorable discharge. a. His record shows he had 3 days lost time and court-martial charges were preferred against him for various drug-related charges. His record is void of a request for chapter 10; however, his record contains an endorsement from the separation authority approving his request for chapter 10, and his DD Form 214 shows he was discharged under AR 635-200, chapter 10, in 1976. He completed 2 years, 11 months, and 13 days of his 3-year and 2-month contractual obligation. b. In regards to the applicant's contention that his request for an upgrade is justified based on the former President Jimmy Carter law, in April 1977: (1) The Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP), often referred to as the "Carter Program," required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. (2) Although the applicant was awarded a Good Conduct Medal; he was released from active duty with an honorable character of service; and he had a period of 24 months of satisfactory military service prior to his discharge, his case did not meet the requirement for review under the SDRP because his discharge under other than honorable conditions was issued in 1976, after the period directed for review. c. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. A medical examination was required for separation under chapter 10, a mental status evaluation was not required. d. According to the MCM, Article 92, UCMJ –– Violating or failing to obey any lawful general order or regulation and Article 134, UCMJ –– Drugs, habit forming, wrongful possession, sale, transfer, or use; punishments included a punitive discharge. 13. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application, evidence in the records and all supporting documents, the Board found that relief was not warranted. 2. The Board carefully considered the applicant’s request in light of published guidance on equity, injustice, or clemency and published DoD guidance for consideration of discharge upgrade requests. The Board noted the applicant’s contention that clemency should grant in accordance with the Department of Defense (DOD) directive to the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. As his service dates reflect a period of service after the review’s completion, there is no basis upon which to grant his request. 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. 6/30/2021 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): 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 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. On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP), often referred to as the "Carter Program," required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. An honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude. 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. 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. d. A medical examination was required for separation under chapter 10, a mental status evaluation was not required. 4. Per Manual for Courts-Martial, Article 92, UCMJ –– Violating or failing to obey any lawful general order or regulation and Article 134, UCMJ –– Drugs, habit forming, wrongful possession, sale, transfer, or use; punishments included 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 based on 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//