IN THE CASE OF: BOARD DATE: 22 February 2023 DOCKET NUMBER: AR20220007848 APPLICANT REQUESTS: upgrade his character of service from under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 19 April 2022 * DD Form 293 (Application for the Review of Discharge or Dismissal), 19 April 2022 * U.S.A. Certification of Military Service, 15 January 1980 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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, his discharge was upgraded on 29 July 1999. He enclosed a copy of the certificate which shows he received an honorable discharge with his application. His military records do not reflect the upgrade. He received a due process letter on 1 July 2022. The letter stated he was sent the due process letter on 14 September 2021; at that time, he was separated from the military for over 20 years. They did not have his current address on file; therefore, he did not receive mail from the military. 3. He enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) in December 1977. He was discharged from the DEP and enlisted in the Regular Army on 18 January 1978. He completed training and was awarded the military occupational specialty (MOS) 76Y (Unit Supply Specialist). 4. On or about 15 May 1978, the applicant was assigned to Personnel Control Facility, at Fort Sill, OK as a supply specialist. 5. On 15 January 1980, the applicant was honorably released from active duty. His record does not contain a DD Form 214 for this period of service but it does contain the following documents: a. Orders 14-69, published by Headquarters, United States Army Field Artillery Center, Fort Sill, OK, on 14 January 1980, show he was discharged from the Regular Army on 15 January 1980 and he reenlisted in the Regular Army for a period of 3 years, effective 16 January 1980. b. United States of America, Certification of Military Service, showing served in the Regular Army from 11 January 1978 to 15 January 1980, when he was honorably released from Active duty. c. Honorable Discharge certificate showing he was honorably discharged from the United States Army on 15 January 1980. 6. Special Court-Martial Order Number 45, Headquarters, US Army Field Artillery Center, Fort Sill, OK, dated 22 May 1980, shows the applicant was arraigned and tried before a special court-martial, and he was convicted of the charge and specifications. a. Charge: Violation of the Uniform Code of Military Justice (UCMJ), Article 134 (General Offenses) - (1) Specification 1: In that the applicant did, at Fort Sill. OK, on or about 7 February 1980, wrongfully have in his possession 44 grams, more or less, of marijuana. (2) Specification 2: In that the applicant did, at Fort Sill, OK, on or about 7 February 1980, wrongfully sell marijuana. b. The sentence, which was adjudged on 17 April 1980, consisted of confinement to hard labor for 2 months, reduction in rank/grade to private (PVT)/E-1, the payment of a fine to the United States Government in the sum of $100.00, and to be discharged from the service with a bad conduct discharge. c. The Action, dated 22 May 1980 states the convening authority approved the sentence, and except for the bad conduct discharge, confinement at hard labor for two months, reduction to private and forfeiture of $100.00 pay was approved, and the sentence was ordered executed. But the execution of the portion thereof adjudging bad conduct discharge was suspended for six months, at which time unless the suspension is sooner vacated the bad conduct discharge, would be remitted without further action. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. The U.S. Army Retraining Brigade, Fort Riley, KS, was designated as the place of confinement, or elsewhere as competent authority may direct. 7. Special Court-Martial Order 252, issued by U.S. Army Retraining Brigade, Fort Riley, KS, 30 May 1980, shows that, the unexecuted portion of the approved sentence to confinement at hard labor for two months, was suspended until 19 September 1980, at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. The service of the approved sentence to confinement at hard labor for two months was deferred on 16 May 1980. 8. On 3 June 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for disobeying a lawful order from Lieutenant Colonel WFL, to wit: "... 2d Bn Trainee Manual Instructions [which states] that you do not exchange monies between trainees for any reason... dated 25 February 80... did... on or about... 25 May 80 fail to obey... by participating in [a] gambling game." His punishment consisted of forfeiture of $50.00 per month for one month, 7 days of extra duty, and 7 days of restriction. 9. On 22 July 1980, the applicant was assigned to Company B, 6th Battalion, 2nd Brigade, at Fort Jackson, S.C. 10. The applicant received two letters of appreciation, which show, in part – * on 8 January 1981, he conducted shipping of nearly a thousand trainees with no loss of property or accountability, and * on 15 January 1981, for his contribution to the extremely smooth operation of the 8th Battalion Consolidated Supply Activity Center 11. On 1 June 1981, the applicant was promoted to specialist (SPC)/E-4). 12. A DA Form 3975 (Military Police Report), dated 19 July 1981, a shows, in part, a complaint of applicant’s wrongful possession of a controlled substance (marijuana) with intent to distribute and being in an off-limit area. The report further shows, military police (MPs) SPC and SPC while on a routine patrol, requested the occupants, the applicant and Ms. to step out of the vehicle for identification purposes. Upon the applicant exiting the vehicle, MP SPC observed one white hand rolled cigarette lying on the front seat of the vehicle. the applicant was apprehended and searched. A search of the vehicle revealed a plastic bag containing 22 manila envelopes with a greenish brown vegetable substance and five packs of cigarette rolling papers. The applicant was transported to the Provost Marshal Office, he was advised of his legal rights and he requested a lawyer. Ms. was searched at the Provost Marshall Office (PMO) and released. MP Investigator conducted a field test with a positive reading for marijuana and a total weight of 70.07 grams. the applicant was released to his unit. 13. On 3 August 1981, the applicant accepted NJP under the provisions of Article 15, UCMJ for wrongfully having in his possession with intent to distribute, 70.07 grams, more or less, of a controlled substance, to wit: marijuana on 19 July 1981. His punishment consisted of reduction to the grade of private/E-2, and correctional custody facility category I for a period of 14 days. 14. On 21 August 1981, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-33a(2), for misconduct because of drug offense(s). He advised the applicant of his rights. 15. On 2 August 1981, the applicant acknowledged receipt of his commander's intent to initiate separation action against him for misconduct. He consulted with counsel who advised him of the basis for the contemplated action to separate him under AR 635-200, Chapter 14, section 4-33a(2), and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights. He declined making a statement on his own behalf. He acknowledged: a. he understood the effect of any waiver of rights; of the least favorable discharge he may receive as a result of the action; and the effect of each type of discharge/characterization of service. b. he understood that, as the result of issuance of a discharge certificate/ character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that consideration by either board does not automatically imply upgrading. c. he understood he may expect to encounter substantial prejudice in civilian life if a discharge/character of service any less favorable than honorable is issued to him. d. he requested consideration of his case by a board of officers and he requested representation by counsel. 16. On 17 September 1981, the applicant's immediate made a formal request to separate the applicant from military service under the provisions of paragraph 14-33a(2), (AR) 635-200. 17. On 6 October 1981, the applicant received notice to appear before Board of Officers. 18. On 2 November 1981, the finding and recommendations of the Elimination Board authority approved the applicant’s discharge under the provisions of paragraph 14-38d, AR 635-200, due to misconduct (drug offenses), and directed the issuance of a Under Other Than Honorable Conditions discharge, and immediate reduction to the lowest enlisted grade (PVT/E-1) under the provisions of paragraph 8-11, AR 635-200. 19. The applicant was discharged from active duty on 11 December 1981, UP of AR 635-200, paragraph 14-33a(2), for misconduct-alcohol or other drug offenses, with the issuance of an under other than honorable certificate. His DD Form 214 shows he completed a total of 3 years, 10 months, and 2 days of active service with lost time from 800417-800515. 20. His records do not contain DD Form 215 (Correction to DD Form 214) nor a reissued or upgraded DD Form 214. 21. There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15-year statute of limitations. 22. By regulation (AR 635-200), service members were subject to separation for alcohol or other drug offenses for the use, the sale, distribution, delivery, or processing, compounding, manufacturing, or possession of any controlled substance or other drug in violation of laws or regulation, or the introduction of any controlled substance onto any Army installation or other Government property. 23. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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 noted, the applicant provided insufficient evidence of post-service achievements or character letters of support to show honorable conduct that might have mitigated the discharge characterization. The Board found insufficient evidence of in-service mitigating factors for the misconduct 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. Therefore, relief was denied. 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): A review of the applicant’s records shows he is authorized additional awards not annotated on his DD Form 214 for the period ending 30 June 1995. As a result, amend his DD Form 214 by correcting in item 18 (Remarks) of the applicant's DD Form 214 to add the entry, “Continuous Honorable Active Service from 18 January 1978 until 15 January 1980.” REFERENCES: 1. Title 10, U.S. Code, 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 (Personnel Separations), Chapter 14 (Separation for Misconduct), in effect at the time, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct, in part, by reason of acts or patterns of misconduct. a. Section V (Other Acts or Patterns of Misconduct), paragraph 14-33 (Other Misconduct) stated, members were subject to separation for misconduct under this section under the provisions of this section for acts of misconduct, to include alcohol or drug offenses outlined in paragraph 14-33a(2). b. Paragraph 14-33a(2) (Alcohol or other drug offense(s)) provided, the use or possession incidental to personal use of any controlled substance or other drug in violation of laws or regulation, where such incidental possession is not covered by the exemption policy; or the sale, distribution, delivery, or processing, compounding, manufacturing, or possession for other than personal use of any controlled substance; or the introduction of any controlled substance onto any Army installation or other Government property. c. 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. d. 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. 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. 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) AR20220007848 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1