IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220008812 APPLICANT REQUESTS: His undesirable discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of the DD Form 149 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 he was in pre-trial confinement for months without waving his right to a speedy trial. He feels he should have been offered an honorable discharge as he never went to court nor was he found guilty. 3. The applicant enlisted in the Regular Army on 3 May 1972 for 3 years. He completed training with award of a military occupational specialty. 4. A DA Form 2820 (Statement by Accused or Suspect Person) shows on 15 May 1973, indicates the applicant and another Soldier were driving around when the fellow Soldier suggested they go to "Pullayup" to pick up something for a friend. The applicant remained in the car while the passenger went inside, he returned with a plastic bag and a vile of clear liquid. The passenger retained possession of the bag and vile. When they drove back to post they were stopped at the main gate and the vehicle was searched. 5. On 16 May 1973, the applicant's immediate commander recommended the applicant be tried by a general court-martial. He indicated the applicant's service prior to the offense charged had been unsatisfactory. 6. Court-martial charges were preferred against the applicant on 16 May 1973, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with possession of a controlled substance, to wit: a vile of demoral and 10.94 grams of marijuana, on or about 15 May 1973. 7. The applicant was placed in pretrial confinement on or about 16 May 1973 8. A DA Form 457 (Investigating Officers Report), dated 31 May 1973, indicates the investigation report was delayed at the request of the defense counsel. 9. The convening authority approved the findings and recommendation for a general court-martial on 1 June 1973. 10. The applicant consulted with legal counsel on 22 June 1973 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged he understood that if his discharge request was approved he could be discharged under other than honorable condition which could deprive him of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. A request for Chapter 10 discharge did not require an admission of guilt at the time of his service. He also requested that the processing of the charges be delayed until the Commanding General acted upon his request. c. The applicant submitted a statement in his own behalf, stating that in a prior request he had informed the command of his drug and family problems. He emphasized his family problems as his mother's hospitalization for major back problems, his father's overseas deployment, and the need to provide care for his two younger brothers. He would like to finish his tour of service but at the same time he needs to aid his mother. d. The applicant's mother provided a statement describing his pre-service life and the health related problems within the family. She stated the applicant had suffered from his seemingly long stay in the stockade, and a black mark on his name at such a young age would not leave him a future. 11. The Battery commander recommended denial of the applicant's request for discharge in lieu of court-martial. He stated the applicant demonstrated his immaturity and poor character by failing to name his drug supplier. The naming of this supplier would have been sufficient justification for issuance of a warrant possibly resulting in a subsequent arrest, conviction, and cessation of this outlet. His failing to name this individual exhibited his utter lack of regard for his fellow man. The Battalion Commander concurred with the recommendation to deny the Chapter 10 separation request. 12. The court-martial convening authority concurred with the recommendations to deny the Chapter 10 request on 17 August 1973. However, on 22 August 1973, the convening authority reversed his decision and approved the request for discharge for the good of the service. He directed the applicant be separated under the provisions of AR 635-200, Chapter 10, in lieu of court-martial in the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate). 13. The applicant was discharged on 5 September 1973 in the grade of E-1. His DD Form 214 (Report of Transfer or Discharge) shows he was discharged under the provisions of AR 635-200, Chapter 10, with Separation Program Number 246 (for the good of the service – in lieu of court martial). His service was characterized as under other than honorable conditions. He was credited with 1 year, 4 months, and 3 days of net active service this period. His awards are listed as the National Defense Service Medal and the Marksman Qualification Badge with Rifle bar. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and result in an under other than honorable conditions discharge. The applicant provides no evidence of post discharge achievements or character reference letters in support of 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. 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, 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that 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 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 3. 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.) AR20220008812 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1