IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210014293 APPLICANT’S REQUEST: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to under honorable conditions (general) or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (2) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he received an honorable discharge; however, his DD Form 214 does not show this. He had a review and his UOTHC was changed but he was sent the old DD Form 214. He gave 110% to America and believes his discharge should be changed. 3. The applicant enlisted in the Regular Army for 3 years on 22 November 1978. 4. Special General Court-Martial Order Number 15, issued by Headquarter sand 4th Infantry Division Fort Carson on 9 October 1979, shows the applicant was found guilty on 7 September 1979 of: * on or about 8 July 1979, stealing a money order, of a value of about $50.00, the property of Private First Class * on or about 18 July 1979, stealing a money order of a value of about $10.00, the property of Private First Class * on or about 1245 hours, 22 April 1979, stealing $15.00, the property of Army/Air Force Exchange Service * on or about 21 April 1979, with intent to defraud, falsely make in its entirety a certain check # 166 * on or about 22 April 1979, with intent to defraud utter a certain check * on or about 0900 hours, 6 July 1979 wrongfully have in his possession one-half ounce more or less, of marijuana * on or about 0900 hours, 6 July 1979, wrongfully use marijuana * on or about 14 August 1979, steal fifty dollars in US currency the property of Private 5. Headquarters, 3rd Battalion, Us Army Retraining Brigade Fort Riley, Ks, Special Court-Martial, Order Number 381.1, dated 6 December 1979, suspended the unexecuted portion of his sentence until 12 April 1980 unless sooner vacated. 6. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 12 December 1979, for on or about 1945 hours, 9 December 1979, wrongfully having in his possession 14.4 grams of marijuana * 28 December 1979, for on or about 1855 hours, 19 December 1979 without authority failed to go at the time prescribed to his appointed place of duty to wit; Extra Duty and for on or about 1635 hours, 22 December 1979 breaking restriction * 12 January 1980, for; on or about 1855 hours 7 January 1980 failure to go at the time prescribed to his appointed place of duty, to wit a Fireguard Briefing; on or about 2301 hours, 7 January 1980 failure to go at the time prescribed to his appointed place of duty; on or about 0530 hours, 10 January 1988, for to go to his appointed place of duty, to wit 4th Unit morning formation 7. The applicant's immediate commander notified the applicant on 18 January that he was initiating action to separate the applicant for misconduct. The commander attached a "Resume of Conduct, Attitude, Performance, and Discreditable Acts'" that listed 54 entries. Included was a notation that the applicant had been afforded a Mental Status Evaluation on 14 January 1980. A copy of this document is not of record. 8. On 18 January the applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-33. The commander stated that the individual was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with improved attitude and motivation. However, the individual's actions since arrival preclude accomplishment of the objective as evidenced by the resume of behavior attitude and ability. The commander recommended that the requirements for further counseling and rehabilitation be waived. 9. The applicant consulted with legal counsel on 24 January 1980 and was advised of the basis for the contemplated separation action (fraudulent entry); the possible effects of a discharge under with either an under honorable conditions (general) or an under other than honorable conditions discharge; and the procedures and rights that were available to him. Subsequent to receiving legal counsel, the applicant waived all of his administrative rights including to submit any statements he desired in his own behalf, and to further representation by counsel. 10. The separation authority approved the recommendation on 30 January 1980 and directed further rehabilitation requirements be waived and the applicant be furnished a UOTHC. 11. The applicant was discharged on 21 January 1980, under Army Regulation 635- 200, paragraph 14-33b (1), for frequent involvement in incidents of a discreditable nature with civil or military authorities. He had 11 months and 13 days of net service this period with two periods of lost time totaling 68 days. 12. The Army Discharge Review Board reviewed the applicant's case on 12 July 1984. Regrettably decisional document is of such poor quality as to be unreadable and hence unusable. The available electronic records do not contain a copy of this document and the available records contain only one DD Form 214. 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 14. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 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 :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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14-33b(1) (a pattern of misconduct) states a Soldier may be discharged for pattern of misconduct consisting of one of the following: (1) Discreditable involvement with civil or military authorities. (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20210014293 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210014293 1 ABCMR Record of Proceedings (cont) AR20210014293 1