IN THE CASE OF BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220009602 APPLICANT REQUESTS: * an upgrade of his characterization of service from under other than honorable conditions (UOTHC) to under honorable conditions (general) * an appearance before the Board via video or telephone APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation from Active Duty), for the period ending 11 December 1975 * letter, National Personnel Records Center, 5 July 2022 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, in effect, he was not convicted in the hearing, and there was no evidence presented in the case. Counsel told him he would spend time in jail. He did not want to go to jail for a crime he did not commit. He did not know if a trial would help or not. He elected a discharge. 3. The applicant enlisted in the Regular Army on 20 February 1973 for a 3-year period. The highest rank he obtained was specialist/E-4. 4. He accepted non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), on 15 August 1974 for disobeying a lawful order on or about 16 July 1974. His punishment consisted of 7 days extra duty and reduction in grade to private first class/E-3 (suspended for 60 days). 5. A DA Form 2985-1R (Alcohol and Drug Abuse Control Program [ADAPCP] Admission Information) and DA Form 2985-2R (ADACP Intake Record), dated 6 October 1975 shows the applicant was enrolled in the ADAPCP. 6. The applicant's service record contains a memorandum, from First Combat Equipment Company (M&S), Combat Equipment Battalion East, dated 17 October 1975, wherein the investigating officer notifies the applicant that he would be conducting an investigation, on 23 October 1975, pursuant to Article 32b of the Uniform Code of Military Justice, to investigate the following charges preferred against the applicant: * attempt to sell 0.18 grams, more or less, of a habit-forming narcotic drug, to wit: heroin * wrongfully having in his possession 0.18 grams, more or less, of a habit-forming narcotic drug, to wit: heroin 7. A DA Form 2985-3R (ADAPCP Follow-Up Record), dated 5 December 1975, shows the applicant was released from the program by reason of separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10. 8. The applicant’s record is void of the facts and circumstances that led to his discharge. His DD Form 214 shows he was discharged on 11 December 1975 under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. His character of service was UOTHC. He was credited with 2 years, 9 months, and 18 days of net active service. 9. Administrative separations under the provisions of AR 635-200, Chapter 10, are voluntary requests for discharge for the good of the service, in lieu of a trial by court- martial. An UOTHC character of service is normally considered appropriate. 10. The Board should consider the applicant's argument and/or evidence in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 provided no evidence of post- service achievements or letters of reference 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. 4. 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/NR) 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, 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) AR20220009602 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1