ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2020 DOCKET NUMBER: AR20200002328 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Records) * Blank DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) * Recommendation for Disapproval of Unqualified Resignation * Report of Result of Trial FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records 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 correction of his character of service from UOTHC. He was falsely charged for possession of something he did not do and had no knowledge of regarding drugs. Neither he nor his attorney saw the evidence because the prosecution stated it was consumed in testing. He served his country honorably and felt like he should have his character of service and discharge corrected. 3. The applicant enlisted in the US Army Reserve (USAR) on 27 August 1979 as a cadet. He was appointed as a Reserve Commissioned Officer of the Army on 19 November 1981, in the rank of second lieutenant (2LT). He was discharged from the Reserve Officers’ Training Corps effective 17 December 1981 to accept a commission in the United States Armed Forces. He took the oath of office as a reserve commissioned officer on 18 December 1981. 4. The applicant submitted an unqualified resignation on 1 April 1982 under the provisions of chapter 3, Army Regulation 635-200 to be effective on 1 July 1982. The applicant provides endorsements from his commanding officers, which recommended disapproval of the applicant's unqualified resignation. 5. General Court-Martial Order Number 24 dated 27 August 1982 provides the applicant was arraigned, tried and found guilty and charged with violation of UCMJ, Article 133. a. The applicant pleaded not guilty to the following charge and specifications. Specifications 2 and 4 of the charge were dismissed by the military judge on motion by the defense prior to pleas. The applicant was found guilty of specification 1 of the charge. The military judge granted a defense motion for a finding of not guilty of specification 3. * Specification 1: 24 February 1982, wrongful possession of marijuana * Specification 2: 24 February 1982, wrongful and unlawful possession of drug paraphernalia, to wit: a smoking device utilized to inhale and ingest marijuana in the form of smoke * Specification 3: 1 March 1982, wrongful possession of .05 grams, more or less, of marijuana * Specification 4: 1 March 1982, wrongful and unlawful possession of drug paraphernalia, to wit: a smoking device utilized to inhale and ingest marijuana in the form of smoke b. He was sentenced to a reprimand, forfeiture of all pay and allowances, and dismissal from the service. The convening authority took action on the case on 27 August 1982 and approved the sentence. The applicant was retained on active duty pending completion of the appellate review. 6. A memorandum, subject: Notification of Results of US Army Court of Military Review, dated 2 December 1983, to the applicant states the court set aside the findings and sentence of his court-martial. The applicant was ordered returned to active duty. In order to avoid a return to active duty, the applicant could submit a resignation for the good of the service in lieu of court-martial. The U.S. Army Court of Military Review, on 31 October 1983, set aside the findings of guilty and the sentence. A rehearing could be ordered by the same or different convening authority. 7. A memorandum for the Commander of U.S. Army Military Personnel Center shows the recommendation of the Army Ad Hoc Review Board that the resignation for the good of the service of the applicant be accepted and a discharge under other than honorable conditions be approved. The applicant's request for resignation for the good of the service was not available for review. 8. Orders 041-110, dated 10 February 1984 show the applicant was transferred from B Battery, Officer Student Battalion to Separation Transfer Point with a reporting date of 10 February 1984. 9. The applicant was discharged on 10 February 1984, under the provisions of Army Regulation 635-120, Chapter 5, for conduct triable by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms his service was characterized as UOTHC. 10. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB denied his appeal on 4 December 1992. 11. The applicant petitioned the ABCMR for an upgrade of his discharge. The Board denied his request on 27 February 1990. 12. The applicant provides a report of result of trial, which is documented in General Court-Martial Order Number 24, dated 27 August 1982. 13. The Board should consider the applicant's application and request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and 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 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 :XX :XX :XX 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 Army Board for Correction of Military Records (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 600-8-24 (Officer Transfers and Discharges), currently in effect, prescribes the officer transfers from active duty to the Reserve component and discharge functions for all officers on active duty for 30 days or more. a. Paragraph 1-22(a) states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. b. Paragraph 1-22(b) states an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious. 3. Army Regulation 635-120, in effect at the time, prescribed procedures whereby an officer on active duty may tender his or her resignation or be discharged and whereby officers on active duty or retired officers may be dropped from the rolls of the Army. Chapter 5 provided for resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court- martial. A resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being UOTHC. 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) AR20200002328 4 1