IN THE CASE OF: BOARD DATE: 12 October 2022 DOCKET NUMBER: AR20220002386 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. Additionally, he desires an appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with self-authored statement * Special Orders Number 207, dated 25 July 1972, Subject: Rifle M-16 and Hand Grenade Qualification * Special Orders Number 193, dated 28 September 1972, Subject: Military Occupational Specialty (MOS) Award * DD Form 214 (Report of Separation from Active Duty) for the period ending 25 February 1974 * DA Form 2166-4 (Enlisted Efficiency Report), dated 1 September 1974 * DD Form 4 (Enlistment Contract-Armed Forces of the United States) * Department of the Army, Letter of Appreciation, dated 9 February 1977 * Department of the Army Letter of Commendation, dated 30 November 1977 * DD Form 214 (Report of Separation from Active Duty) for the period ending 3 April 1978 * Department of Veterans Affairs (VA) Letter of Administrative Decision, dated 19 March 1979 * Character Reference Letters (six) 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 not given legal assistance before he was given a discharge. He did not deny the responsibility that there was marijuana in his locker when it was searched. He never talked to any legal counsel at the time of discharge to understand what was going on. He accepted the responsibility of the drugs even though they were not his. In reading the administrative decision it states that he was convicted of petty larceny. He never went to civil court nor was he given any paperwork on any court dates. He did not receive a letter from the Army, so he could not respond. Since he has gotten out, he has never had any trouble with the law, except one speeding ticket 27 years ago. He worked as a certified nursing assistant for 20 years and believes the civil court case never happened. 3. By letter to the Board, the applicant states: a. He was in the Army from 1972-1978. He was promoted early and asked to reenlist twice, which he was proud to do. He was in charge of quarters when another soldier walked up and asked to use his locker. He realized that this was too trusting but that is just who he is. After his duty ended, he went to his bed and was awakened by the military police (MP) and working dogs. They asked him to open his locker and he complied. b. He was surprised when the door was opened and on the very top were bags of marijuana, not even covered up. If he had been using or selling marijuana, he would have not had the drugs on top of the locker in sight for everyone to see. Since leaving the military he has worked hard and has been an honest person. He has never done any drugs in his life. He does not even like taking medication and protest antibiotics. c. In the administrative report from March 1979, it states that he was convicted in civil court, but he never appeared in civil court for this offense. He has multiple accommodations from his service. He was promoted early due to his performance. The board of officers decided to discharge him because they thought he had a civil conviction which he did not. 4. The applicant enlisted in the Regular Army on 26 May 1972, for a 2-year term of service. He was awarded MOS 52B (Power Generator Operator). He reenlisted on 29 March 1974, and on 29 December 1976, for a 4-year term of service. The highest rank/grade he obtained was specialist/E-4. 5. A DD Form 173 (Joint Message Form), dated 2 November 1977, shows that MP conducted a search and found 36 individual bags of marijuana in the applicant’s room. There were 28 bags in the applicant’s wall locker, and the bottom of his trash can contained about one-half inch of marijuana seeds. The estimated street value of the marijuana was $4,200.00. A field test proved that the substance was marijuana. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 11 November 1977 shows the applicant he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. He had the mental capacity to understand and participate in any administrative proceedings deemed appropriate by his command. 7. DA Form 3975 (Military Police Report), dated 24 November 1977 shows the applicant was apprehended by civil authorities regarding information which was received suggesting that the applicant and another Soldier stole a radiator. Upon searching the applicant an undetermined amount of marijuana was found in his pocket. 8. On 1 December 1977, the applicant’s commander notified the applicant of his intent to initiate separation actions against him under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 13, due to misconduct and drug offense(s). 9. On 7 December 1977, the applicant acknowledged the commander’s notification. He was advised of the basis for the contemplated actions to separate him and of the rights available to him. He acknowledged his understanding and requested representation from military counsel, consideration of his case and a personal appearance before a board of officers. He elected to submit a statement in his own behalf; however, his record is void of the statement. 10. The applicant's commander formally recommended the applicant's separation, under the provisions of Army Regulation 635-200, paragraph 13-5, due to misconduct. His commander cited as the specific reasons, the applicant's possession of marijuana and his conviction in Federal Court for possession of marijuana and larceny of lost property. He further stated, the applicant was sentenced to 10 days in jail (suspended), fined, and placed on one-year probation. 11. On 1 March 1978, the applicant's case was heard before a separation board. The Board recommended the applicant's discharge from the service due to misconduct and civil conviction, with the issuance of an UOTHC discharge certificate. 12. On 23 March 1978, the separation authority approved the recommended discharge. He directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 13. The applicant was discharged accordingly on 3 April 1978. His DD Form 214 confirms he was separated with an UOTHC discharge under the provisions of Army Regulation 635-200, paragraph 14-33a (2). He was credited with completing 1 year, 3 months, and 5 days of net active service this period. He was awarded or authorized the Army Good Conduct Medal, the National Defense Service Medal, and the Armed Forces Expeditionary Medal. 14. The applicant's record is void of evidence he was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP). 15. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his service characterization. The ADRB considered his request on 24 March 1981, determined that his discharge was proper and equitable, and denied his request for relief. 16. The applicant provides: a. An Enlisted Efficiency-Report, dated 1 September 1974 which shows he was rated as excellent. b. A Letter of Appreciation, dated 9 February 1977 c. A Letter of Commendation, dated 30 November 1977 d. A VA Administrative Decision, dated 19 March 1979 e. Character Reference Letters that attest to him being a good husband who has never taken drugs. He is hardworking and has worked numerous jobs to support his family. He is proud that he served in the military. He is loving, caring and always willing to help people. He makes friends wherever he goes and is extremely conscientious and dependable. 17. 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. a. Army Regulation 635-200, Chapter 14, provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge UOTHC is normally considered appropriate for separations under this chapter. b. 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. 18. A review of the applicant’s service record contains sufficient evidence to support he is eligible for awards that are not annotated on his DD Form 214 for the period ending 3 April 1978. The Korea Defense Service Medal (KDSM) will be added to his DD Form 214 as administrative corrections, to show in block 13. BOARD DISCUSSION: 1. 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 found his post service accomplishments and letters of character support noteworthy. However, 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. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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: Except for the correction addressed in Administrative Note(s) below, the Board found 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): Reference the enclosed request for correction of military records from the subject individual to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 3 April 1978 by adding the Korea Defense Service Medal 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and his counsel is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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. Chapter 14 Paragraph 14-33 (Other Misconduct). Then in effect stated commanders identified Soldiers for discharge when they displayed a pattern of misconduct; this included Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities. An under other than honorable conditions character of service was normally given for Soldiers discharged under this provision. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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) AR20220002386 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1