IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210015912 APPLICANT’S REQUEST: Upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge) * DD Form 214 (Report of Separation from Active Duty) * Applications (two), dated September and December 1986, with miscellaneous documents and excerpt of trial transcript * Medical Documents (15 pages) * Character Reference Letters, dated 5 January and 6 February 2012 (four) * National Personnel Records Center letter, dated 28 February 2020 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 he was charged with a crime without any evidence. He served during the Vietnam era when drugs were plentiful. He probably could have gotten a general discharge years ago, but he requested upgrade to an honorable discharge and got turned down. He has been out of the Army for 41 years and has not been in any trouble. He worked as a truck driver for over 30 years. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 6 July 1972, for a period of 6 years. On 31 July 1972, he enlisted in the Regular Army for 3 years. He was awarded military occupational specialty 13B (Cannon Crewman). The highest pay grade he attained was E-4. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates: * 24 February 1974, for being disrespectful in language toward his superior non- commissioned officer on or about 18 February 1974 * 9 September 1974, for assaulting another Soldier by kicking him about his body on or about 19 July 1974 * 7 March 1975, for being absent from his appointed place of duty on or about 28 February 1975 5. Before a special court-martial on or about 3 June 1975, at Fort Campbell, Kentucky, the applicant was found guilty of wrongful possession of 6.40 grams of morphine and 0.36 grams of heroin, on or about 23 February 1975. The court sentenced him to confinement at hard labor for 100 days, forfeiture of pay for two months, reduction to the grade of E-1, and separation from service with a bad conduct discharge (BCD). 6. On 21 August 1975, the applicant was restored to duty with forfeitures not to apply until the sentence was ordered into execution. He was placed on excess leave on 12 September 1975, pending completion of appellate review. 7. On 6 August 1976, the sentence was approved and forwarded for appellate review. 8. On 9 February 1978, the U.S. Army Court of Military Review affirmed the findings and sentence. 9. Special Court-Martial Order Number 73, issued by Headquarters, 101st Airborne Division (Air Assault) Corps and Fort Campbell, Fort Campbell, Kentucky on 31 July 1978, noted that the applicant's sentence had been affirmed and ordered the BCD duly executed. 10. Accordingly, the applicant was discharged on 12 September 1979. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 11, as a result of court- martial. His service was characterized as UOTHC. 11. On 23 November 1984, the Army Discharge Review Board reviewed the applicant's discharge and determined it was both proper and equitable. Accordingly, his request for an upgrade was denied. 12. On 23 September 1986, the applicant petitioned the USAR Personnel Center for a discharge upgrade. However, his request was not submitted to the ABCMR for consideration. 13. The applicant provides several in-service medical documents as well as various documents pertaining to his appellate review. Additionally, he provides character reference letters attesting to his dependability, trustworthiness, and dedication to his family. 14. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 15. 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. 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 found the statements of support the applicant provided insufficient to support a favorable 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. 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. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A UOTHC discharge is a separation from the Army under conditions other than honorable. When authorized, it is issued to a Soldier whose reason for separation specifically allows such characterization. d. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as UOTHC. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, USC, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 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) AR20210015912 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210015912 1 ABCMR Record of Proceedings (cont) AR20210015912 1