IN THE CASE OF: BOARD DATE: 16 December 2021 DOCKET NUMBER: AR20210012250 APPLICANT REQUESTS: The applicant requests the upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, there was no legitimate reason for him to have received an under other than honorable conditions discharge. He was forced to accept it or be jailed. 3. On 4 May 1976, the applicant, at the age of 18 years, enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 6 years. On 7 May 1976, he was discharged from the USAR DEP and entered active duty for a period of 3 years. His DA Form 2-1 (Personnel Qualification Record) shows he entered basic training on 7 May 1976 and advanced individual training for military occupational specialty (MOS) 16P (Air and Missile Defense Crewmember) on 6 July 1976. He arrived at his first duty station, Fort Sill, Oklahoma, on 29 August 1976. 4. The applicant accepted nonjudicial punishment (NJP) on: a. 2 June 1976 for breaking restriction. His punishment included forfeiture of $75 and restriction for 7 days. The applicant appealed the punishment and his appeal was denied. He submitted the following in support of his appeal: (1) He wanted to state his appeal to the imposing authority with true feelings. He felt like the punishment was too great because it did not give him a chance to do better, which he could do. (2) The date of his letter was 3 June 1976 and on 4 June 1976, they had a mid- cycle pro park test. Then on 5 June 1976, there was a barracks inspection and a green uniform inspection, plus a wall locker inspection that was upcoming. (3) The applicant believed when he went to his mid-cycle test, he would receive a go on all five tests. There were a lot of hard-working men in the barracks and they were sure to pass the barracks inspection. When it came to the wall lockers, he himself did not like to have a sloppy or out of order wall locker. (4) What he was trying to say was that even if he did everything he stated, he would not be given the benefit of the doubt or given the chance to have an on-post pass such as if anyone would complete everything he stated he would. (5) He was not saying he was not guilty of the charges stated in the NJP, but the punishment was too great for the way the offense was committed. He did not just come right down to himself and say he didn't have a pass and he was going anyway. It didn't happen that way. (6) Because some of his peers walked up to him and said they were going to the snack bar to have a beer. He said no and did not go to the snack bar to have a beer, but some of his his peers did and they were receiving the same punishment as he was. (7) The only reason the drill sergeant said he broke restriction was because the drill sergeant had gone to the day room where all the people without passes were and said anybody who wanted to go to the post exchange (PX) should fall in in front of the orderly room. He was going to take them to the PX. (8) What the applicant did was go to the PX before the drill sergeant took some of them. He could understand being punished for it, but he really truly and deeply believed that $75 and 7 days' restriction was too much punishment for that one offense. (9) Rules were rules, and where they were broken one had to pay the price and he accepted that fact. He broke a rule. All he asked was to be punished fairly. b. 29 June 1976, for assaulting another Soldier. His punishment included forfeiture of $84, restriction for 3 days, and extra duty for 3 days. The applicant did not appeal his punishment. c. 8 December 1976, for going for his guard post with the intent to abandon the same. His punishment included reduction to private/E-2 and forfeiture of $75. The applicant did not appeal his punishment. 5. On 8 November 1976, a memorandum was completed, subject: Arrested by Civil Authorities, which states the report from the Federal Bureau of Investigation (FBI) concerning the applicant was forwarded for whatever action was deemed appropriate. The FBI report showed the applicant was charged with forgery and larceny in the 3rd degree on 11 July 1975, assault in the 2nd degree on 16 October 1975, and assault and robbery on 15 September 1976. 6. On 17 November 1976, a memorandum was completed, subject: Arrested by Civil Authorities, which states a request for action regarding the arrest of the applicant by civilian authorities. 7. On 1 February 1977, a final Military Police Report was completed. The type of complain was wrongful possession of a controlled substance (marijuana). 8. On 1 February 1977, the applicant completed a sworn statement, which states: a. The prior night at about 2000 hours, another Soldier asked him if he would loan him a black holster purse. The applicant gave it to him to wear to the club. b. When the applicant gave the purse to the Soldier, he believed it was empty. He bought the purse for a girlfriend and it had been in his locker since he bought it. c. The applicant started to go to the club with the Soldier but they wouldn't let him in and so he went to the movies. d. The applicant was not sure if the Soldier had hashish with him and he couldn’t have gotten any at the club. 9. On 1 February 1977, B , a Soldier, made a sworn statement, which states: a. During a health and welfare inspection a sergeant (SGT) asked the Soldier to open his wall locker in the presence of the SGT. The SGT found a black purse that contained tissue with residue of hashish. The Soldier had no idea where the hashish came from. b. The applicant had stated the purse was empty when he loaned it to the Soldier. The Soldier wore the purse the previous evening and didn't even open it. c. The Soldier sometimes used drugs. He smoked hashish every now and then but it has been at least 6 or 7 weeks since he had any to smoke. He didn't buy it because it was expensive. He didn't know where to buy hashish. He had a German turn him on to some at Las Vegas one night. d. He was surprised when the SGT found the tissue paper with hashish in the purse. He didn't know it was there. 10. On 1 February 1977, the SGT made a sworn statement, which states during a health and welfare inspection, he requested the Soldier unlock his wall locker in the presence of him, a staff sergeant (SSG), and a second lieutenant (2LT). In the Soldier's locker the SGT found a black purse that contained a piece of tissue paper that contained what appeared to be the residue of hashish. He took the item from the locker and it remained in his possession until it was released to the military police. 11. On 2 February 1977, the investigator made a sworn statement, which states, in effect, she was informed that during a health and welfare inspection, the SGT found a black man's purse containing residue of a plant matter believed to be marijuana in the locked wall locker of the Soldier. While in the orderly room, the applicant requested to make a statement as to the ownership of the purse. In a written witness statement, the applicant claimed the purse was his and had been loaned to the Soldier the night prior. The applicant believed the purse was empty when he had given it to the Soldier. He further stated, the Soldier had not been in possession of drugless the night prior. The Soldier was read his rights and signed a waiver and gave a statement. The Soldier claimed after receiving the purse from the applicant, he had only worn it and had not opened it. He stated that although he used drugs, it had been a surprise to find the purse contained residue of hashish. The suspected hashish was field tested and produced a positive result for marijuana. 12. On 3 February 1977, the SSG made a sworn statement, which states, in effect, he was present when the SGT instructed the Soldier to unlock his wall locker for a health and welfare inspection. Upon inspecting the wall locker, the SGT found a purse that contained some brownish looking substance that he believed to be hashish. 13. On 3 February 1977, the 2LT made a sworn statement, which states, in effect, he was present during a health and welfare inspection on 1 February 1977. He was present in the Soldier's room and observed the SGT take a black should purse from the Soldier's locker. As the SGT was looking into the purse, he discovered a vegetable substance, which looked like it could be tobacco. He overheard the Soldier state he didn't know it was in there. The 2LT was present during a chemical test of the same substance. He observed the field test of the substance, which proved to be positive for marijuana. 14. On 7 February 1977, a Criminal Investigation Laboratory Report was completed and shows the evidence examined was one black purse containing a greenish brown substance. Examination of the vegetable contents revealed the presence of cannabis (marijuana) in hashish form. 15. On 18 February 1977, a private first class (PFC) made a sworn statement, which states, in effect: a. He was asleep in his room. He was woken up by some noise coming from within his room. When he was completely awake he saw the applicant bending over him while he lay in his bed. b. The applicant stated to him not to say a word about what the PFC heard or saw. He asked the applicant what he was talking about and the applicant said he'd whip the PFC's ass. c. The applicant grabbed the PFC's covers from his bunk and started to pull them down. At that time, the PFC grabbed his covers from the applicant and at that time, he was struck by the applicant in the face one time. d. After the applicant had struck the PFC, the applicant made a few more statements to him which he didn't remember. The applicant went over to the PFC's friend and threatened him a couple of times and then approached the PFC again and stated something to him. The applicant then left the room. e. The PFC had his roommate lock the door to his room while he got dressed, and then the PFC left the room and went to make a report of the incident to his section SGT. f. The PFC didn't know why the applicant struck him in his face. He did not see anything happen in the room. He couldn't see what had happened due to his wall locker door being left open. 16. On 18 February 1977, the PFC's roommate, also a PFC, made a sworn statement, which states he was in his room when the applicant went into the room and grabbed him by his t-shirt and threw him on a bed. The applicant told him he should tell not tell another Soldier what to do. The applicant then ripped his shirt down the middle and went over to his roommate's bed, pulled back the blanket and hit him in the face with his fist. His roommate was sleeping when the applicant did this. The applicant then exited the room. The other Soldier had been in the PFC's room earlier and the PFC told him not to wake his roommate up. The Soldier told the PFC to get lost and departed the room. 17. The applicant's service record contained an Enlisted Personnel Date for Elimination Proceedings document, which shows: * the applicant's date of birth * his present age was 19 * he enlisted on 7 May 1976 for three years * his MOS was 16P with the duty title of Red Eye Gunner 18. The applicant's service record contained a statement from a SGT, which states, in effect: a. On 7 March 1977, the applicant was absent all day, while he said he was at the hospital. He was not referred to the hospital by the Troop Medical Clinic. The applicant later told the SGT he was not at the hospital. b. On 8 March 1977, the applicant had an appointment at 0900. His SSG released the applicant at 0800 from paint detail to the SGT until after his appointment. At the time, the SGT told the applicant to sweep the stairs and then go to his appointment. At about 1030, they learned the applicant missed his appointment. Another SGT found the applicant asleep in a specialist's room, at which time the SGT went to the room and also found the applicant asleep. The SGT told the applicant to go to the section room and he complied. c. On 9 March 1977, at about 0630, the SGT went into the applicant's room and both he and his roommate were asleep. The SGT woke them up, at which time the applicant's roommate got up and proceeded with his actions. The applicant remained asleep and the SGT had to go into his room additional times until 0715, when the SGT told the applicant it was a lawful order and he would be in formation in 10 minutes or he would be in violation of the order. The SGT also told him to remove an earring he wore in his left ear and to put on a regulation undershirt. The applicant arrived in formation wearing a black undershirt and still had his earring on. At that time, the SGT told him again to remove his earring and the applicant did. When they were going to the motor pool, the applicant wanted permission to go wash his face and the SGT told him no and that was why the charge of quarters woke everyone up at 0530. 19. On 11 April 1977, the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL). On 10 May 1977, his duty status was changed from AWOL to dropped from rolls (DFR). On 7 July 1977, his duty status was changed from DFR to return to military control by way of the applicant's surrender. 20. On 20 May 1977, a memorandum was completed in reference to the requested information regarding the applicant's civilian arrest, which states the applicant had been DFR for desertion effective 10 May 1977. 21. On 8 July 1977, the applicant underwent a Report of Medical Examination, which shows he was qualified for separation. His Report of Medical History shows he was in good health. 22. On 6 August 1977, the applicant's duty status was changed from PDY to AWOL. On 7 August 1977, his duty status was changed from AWOL to PDY. On 8 August 1977, his duty status was changed from PDY to confined by military authorities. 23. On 9 August 1977, charges were preferred against the applicant; however, the charge sheet contained in the applicant's record is incomplete and does not show what he was charged with. 24. On 1 September 1977, the applicant's duty status was changed from confined by military authorities to PDY. 25. On 16 September 1977, a memorandum, subject: Reason/Authority for Separation (Discharge in Absentia), was completed and states: a. The Department of the Army policy provided that each individual being separated from active duty who received a DD Form 214 be offered separation documents indicating the narrative reason or separation, description of the regulatory or statutory authority for separation, and the individual's reenlistment code. b. The applicant was advised that the statement explaining the reason and authority for his separation from active duty and reenlistment code could be of assistance to the applicant in securing employment or acceptance for enrollment into a civilian institution, after discharge. c. The reason and authority for the applicant's discharge was for conduct triable by court-martial. 26. The applicant's service records do not include his separation packet, but his DD Form 214 (Report of Separation from Active Duty) shows on 16 September 1977 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Enlisted Separation), Chapter 10. He had completed 1 year, 1 month, and 11 days of his 3-year enlistment contract. He had a total of 88 days lost. 27. During the applicant's era of service, Soldiers charged with Uniform Code of Military Justice (UCMJ) violations, for which a punitive discharge was included as a punishment, could request separation under chapter 10, Army Regulation 635-200. Such requests were voluntary and available in-lieu of trial by court-martial. The specific charge(s) preferred against the applicant is not available for review, therefore, we are unable to determine if the charges carried a punitive discharge as part of its maximum punishment. 28. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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 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 :XX :XX :XX 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 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. 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. 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. 4. Army Regulation 15-185 (ABCMR), paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012250 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1