IN THE CASE OF: BOARD DATE: 21 September 2022 DOCKET NUMBER: AR20220002257 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * DD Form 214 (Report of Separation from Active Duty) * Statements of Support (two) 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 (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 requests an upgrade of his service record. He tried once about six months after this first happened. He is so sorry he made such a bad decision but since then he has worked a full-time job and put himself through school. He was unaware of the seriousness of his actions at the time. He was smoking pot every day and was scared he was going to be shipped to . He was drinking every day and hanging with the wrong people. He was easily influenced, but since then he has been self- employed for 27 years. 3. By letter to the Board, the applicant asks that his discharge be considered under current policy, with mitigating factors, and his total record. His actions at the time were due to his issues with alcohol and drug addiction, this matter caused him and his family great embarrassment. Additionally, he provides character reference letters attesting to his hard work, dedication, education, and business ownership. He is a dependable husband, father, and model citizen. 4. The applicant enlisted in the Regular Army on 22 August 1973, for a period of 3 years. After completion of required training, he was awarded military occupational specialty 75D (Personnel Records Specialist). 5. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), while in advanced individual training (AIT) at Fort Jackson, SC on/for: * 22 January 1974 - failing to go at the time prescribed to his appointed place of duty on 15 January 1974; his punishment consisted of forfeiture of $75.00 for one month, restriction and extra duty * 31 January 1975 - absenting himself from his appointed place of duty on 6, 7, and 9 January 1975; his punishment consisted of forfeiture of $89.00 for one month (suspended) * 20 February 1974 - absenting himself from his unit from on or about 11 February 1974 to 15 February 1974; his punishment consisted of forfeiture of $50.00 for one month and extra duty * 26 February 1974 - failing to go at the time prescribed to his appointed place of duty on 17 February 1974; his punishment consisted of forfeiture of $75.00 for one month, restriction and extra duty * 14 March 1974 - absenting himself from his unit from om or about 1 March 1974 to 11 March 1974; his punishment consisted of forfeiture of $150.00 for one month, reduction to private/E-1, extra duty, and restriction 6. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 4 March 1975 for: * wrongfully having in his possession 15.99 grams, more or less, of marijuana on 7 January 1975 * without authority absenting himself from his appointed place of duty on 31 January 1975, 12 February 1975, and 18 February 1975; his punishment consisted of reduction to private/E-1 and extra duty. 7. The applicant’s duty status changed to absent without leave (AWOL) on 27 March 1975, he surrendered to his unit at Fort Knox, KY on 24 April 1975. His status changed to AWOL, and he was dropped form the unit rolls on 7 May 1975. He returned to military control on 28 May 1975. 8. On 28 May 1975, court martial charges were preferred against the applicant for violation of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with the following specifications: * wrongfully and unlawfully possessing marijuana, a controlled substance on 19 April 1973 * being AWOL from on or about 27 March 1975 to 24 April 1975 and 7 May 1975 to 28 May 1975 9. The applicant’s duty status changed to confined by military authorities on 28 May 1975, and he was placed in pre-trial confinement. 10. The available record is void of evidence the applicant was ever screened for or entered into the Alcohol and Substance Abuse Program, voluntarily or involuntarily. 11. Before a special court-martial on or about 2 July 1975, the applicant was found guilty of two specifications of being AWOL from on or about 27 March 1975 to on or about 24 April 1975, and from on or about 7 May 1975 to on or about 28 May 1975. The court sentenced him to be confined at hard labor for three months, and to forfeit $150.00 pay per month for three months. The sentence was adjudged on 30 July 1975 and approved on 8 August 1975. 12. The applicant's commander notified the applicant on 31 July 1975 that he had initiated actions to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, by reason of unfitness. The basis for this action was because of his frequent incidents of a discreditable nature with military authorities. He was advised of his right to: * consult with counsel * present his case before a board of officers * submit statements in his own behalf * be represented at any hearing by appointed counsel for representation * waive in writing the right above * he acknowledged receipt of the communication by indorsement hereon 13. A Report of Mental Status Evaluation on 31 July 1975, shows the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in board proceedings. 14. The applicant consulted with legal counsel on 6 August 1975 and was advised of the basis for the contemplated separation under the provisions of Chapter 13, AR 635- 200, and its effects; the rights available to him; and the effects of a waiver of his rights. He requested consideration of his case and, a personal appearance, by a board of officers. He could expect to encounter substantial prejudice in civilian life. He elected not to make a statement in his own behalf. 15. On 10 September 1975, the applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 13-5a, for unfitness. As the specific reasons his commander noted, the applicant’s frequent incidents of a discreditable nature with military authorities and frequent instances of AWOL. 16. The intermediate commander memorandum, dated 10 September 1975, shows the applicant’s unit commander had recommended elimination from the service under the provisions of Chapter 13, AR 635-200 for unfitness and recommended the request be approved. 17. By memorandum from Captain, dated 15 September 1975, the applicant's letter of notification of the prosed separation action was incorrect in that the commander recommended an Undesirable Discharge be given to the applicant. In compliance with paragraph 13-12b, AR 635-200 no recommendation will be made as to the type of discharge to be given an individual processed under this provision. 18. A separation board convened on 7 November 1975, and the open hearing was adjourned on 14 November 1975. The Board found the applicant was undesirable for further retention in military service and recommended that he be discharged based on unfitness, with an Undesirable Discharge Certificate. 19. On 12 December 1975, through counsel, the applicant submitted a petition for clemency and requested that he be rehabilitatively assigned to another unit for a six- month period, at which time he could again be evaluated with respect to his productivity in the military. 20. On 6 January 1976, the separation authority approved the findings and recommendation of the Board. He directed the applicant be discharged under the provisions AR 635-200, Chapter 13, based on unfitness and issued a DD Form 258A (Undesirable Discharge Certificate). 21. Accordingly, the applicant was discharged on 15 January 1976. His DD Form 214 shows his service was characterized as UOTHC and notes the reason as discreditable nature with military authorities. He completed 1 year, 10 months, and 3 days of net active service. He had 205 days of lost time and was awarded or authorized the National Defense Service Medal. 22. On 21 March 1980, the Army Discharge Review Board (ADRB), determined that the applicant was properly discharged and advised him that his request for a change in the type and nature of his discharged had been denied. 23. In reaching its determination, the Board can consider the applicant's petition, his service record, and statement in light of the published DoD guidance on equity, injustice, or clemency. 24. Published guidance to the Boards for Correction of Military/Navy Records 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: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant no provided post-service achievements or character letters of support to weigh 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 and denied relief. 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. 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 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 (AR) 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. Paragraph 13-5(a), as then in effect, provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20220002257 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1