IN THE CASE OF:  
BOARD DATE: 25 March 2021 DOCKET NUMBER:  AR20200003018 
APPLICANT REQUESTS: 
. an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge . personal appearance before the Board 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) . Self-Authored Statement 
FACTS: 
1. 
The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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: 


a. 
Looking back at his situation, at first he was away from his wife and first newborn for two years and it was stressful. This is not an excuse for a U.S. Army Soldier. While stationed overseas in Panama, he was set for duty as a driver for flag officers at Quarry Heights under General M_. One night out in the town, he was approached by a local man and did cocaine, an illegal substance, while under the influence of alcohol. He was in his early 20s in it was in the early 90s. This is where his story begins. 

b. 
When he joined his family was ecstatic and he was a proud father and a newlywed who would be able to take care of his wife and daughter. His ASVAB (Armed Services Vocational Aptitude Battery) score was high so he qualified for almost every military occupational specialty (MOS). He became the best Soldier, excelling in basic training in various training events and competed for multiple Soldier competitions. He was promoted from E-2 to E-4 in 15 months. 

c. 
The night of the incident he jeopardized his career as a Soldier. The following day, out of the blue, he was called for a urinalysis, which he failed. After the urinalysis the Criminal Investigation Division (CID) offered to help him, if he worked with them. He found out that CID was in the club the night of the incident and he wished they had intervened. He was committed to helping CID. He grew up in Panama and his father was a Federal Police Officer for the U.S. Canal Zone for 20 years. The applicant was fluent in Spanish and assisted CID with setting up drug purchases/busts. The last bust ended up being a cousin of a childhood friend and this is how his cover was blown. Now everyone knew he was a snitch. Conveniently, his UOTHC was approved a week after his cover was blown. He was a disgrace to his family. His undercover work was not recognized, although he risked his life. He was not compensated with an honorable discharge. It took him 21 years to return to Panama to see his family and friends. 

d. 
The applicant further described he and his family's accomplishments after his discharge. He makes $300.000 annually. He contributes his phenomenal life to following the strict Army like guidelines. Nevertheless, his life is not complete because he cannot say his service was honorable. He believes he did everything to correct his wrongdoing. He cannot display his awards because he did not receive an honorable discharge. If the Board grants him an honorable discharge, it would complete his life as a respectable citizen he had become because of his Army roots. 


3. 
On 15 September 1992, the applicant enlisted in the Regular Army for a term of 6 years, as a Private E-2 and at the age of 19 years old. 

4. 
He attended basic training and advance individual training, in which he was an academic failure for the MOS 92J (Physical Therapy Specialist), but later was awarded the MOS 68D (Aircraft Powertrain Repairer). On 10 March 1994, he was assigned in Panama. 

5. 
On 1 June 1994, he was promoted through the ranks to Specialist (1 year, 8 months, and 17 days after his enlistment). 

6. 
On 31 October 1994, court-martial charges were preferred against the applicant for one charge and specification in violation of Article 112a, Uniform Code of Military Justice (UCMJ) for wrongfully using cocaine between on or about 9 September 1994 and 13 September 1994. 

7. 
By memorandum, dated 18 November 1994, the Staff Judge Advocate (SJA) advised the Court-Martial Convening Authority regarding the applicant's court-martial charges. The SJA informed him of the offense and the applicant could receive the maximum punishment of a bad-conduct discharge, confinement for six months, forfeiture of two-thirds pay, and reduction to Private E-1. He recommended trial by special court-martial empowered to adjudge a bad-conduct discharge. 

8. 
By memorandum, dated 27 January 1995, the Alcohol and Drug Control Officer, notified the applicant's immediate commander that the applicant tested positive a second time for cocaine. His first positive urinalysis was on 13 September 1994. 

9. 
The applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10, and he elected not to submit a statement on his own behalf. 

10. 
The chain of command recommended approval of the request for discharge and on 15 February 1995, the appropriate separation authority approved the applicant's request directing he be reduced to Private E-1 and issued an Under Other Than Honorable Conditions Discharge Certificate. 

11. 
On 7 March 1995, he was discharged under AR 635-200, Chapter 10 by reason of in lieu of trial by court-martial. His service was characterized as UOTHC. He completed 2 years, 5 months, and 23 days of his 6-year contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows was awarded or authorized: 

. National Defense Service Medal . Army Service Ribbon . Hand Grenade Expert Marksmanship Qualification Badge . M16 Rifle Marksman Marksmanship Qualification Badge . Aircraft Crewman Badge 

12. 
The applicant requests an upgrade. He states he believes he did everything to correct his wrongdoing. He cannot display his awards because he did not receive an honorable discharge. If the Board grants him an honorable discharge, it would complete his life as a respectable citizen he had become because of his Army roots. 


a. 
His record shows, he enlisted at the age of 19 years old and court-martial charges were preferred against him for wrongfully using cocaine. He completed 2 years, 5 months, and 23 days of his 6-year contractual obligation. 

b. 
In regards to the applicant's request for a personal appearance, Army Regulation 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 

c. 
AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) provides when individuals are identified, voluntarily or involuntarily as possible alcohol or other drug abusers, the unit commander or designated representative will advise them of their rights, explain provisions of the limited use policy, interview and inform them of the evidence, give them an opportunity to provide additional evidence, including information on drug sources, if they desire. Such disclosure is strictly voluntary, collect any drugs or paraphernalia voluntarily relinquished and turn them over to the provost marshal and refer all suspected individuals identified, to include through urinalysis and blood alcohol test to the alcohol drug abuse prevention control program (ADAPCP). 

d. 
AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination under chapter 10 is not required, but will be administrated if requested in writing by the soldier. If a medical examination is requested, a mental status evaluation is also required. 

e. 
According to the MCM, Article 112a, UCMJ –– Wrongful use, possession, etc., of controlled substances, maximum punishment includes a punitive discharge. 


13. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. 
BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that partial relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for 
consideration of discharge upgrade requests. The Board considered the applicant’s 
statement, his record of service, the frequency of the misconduct and the reason for his separation.  The Board considered the applicant's statement regarding his actions to assist CID prior to his discharge. The Board also considered his statements of post-service conduct and achievements. Based on the misconduct and sufficient evidence of mitigating factors, the Board agreed that he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. However, based on a preponderance of evidence, the Board found that the applicant’s case warrants an upgrade of his discharge to under honorable (general) conditions as a matter of clemency. 
The applicant’s request for a personal appearance hearing was carefully considered.  In 
this case, 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. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
XXX XXX XXX GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
: : : DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending his DD Form 214 to show his character of service as under honorable (general) conditions discharge. 
The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a personal appearance before the Board. 

Expired certificate 
X 
CHAIRPERSON 
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, 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 Army Board for Correction of Military Records (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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 

3. 
Army Regulation 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) governs the Army's ADAPCP, defining policy and responsibilities, it provides: 


a. 
When individuals are identified, voluntarily or involuntarily as possible alcohol or other drug abusers, the unit commander or designated representative will advise them of their rights, explain provisions of the limited use policy, interview and inform them of the evidence, give them an opportunity to provide additional evidence, including information on drug sources, if they desire. Such disclosure is strictly voluntary, collect any drugs or paraphernalia voluntarily relinquished and turn them over to the provost marshal and refer all suspected individuals identified, to include through urinalysis and blood alcohol test to the alcohol drug abuse prevention control program (ADAPCP). 

b. 
The initial screening interview will be accomplished by the ADAPCP staff. Limited use provisions are unchanged by the mandatory separation processing of drug abusers according to Army Regulations 635-100 and 635-200. If after the initial screening the commander believes a soldier would not respond to rehabilitation or based on the Soldiers record does not have the potential for future service, he will be considered and processed for separation according to Army Regulations 635-100 or 635-200. 


4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 
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 was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c. 
When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 

d. 
 A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge) could submit a request for discharge in lieu of trial by court-martial. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 

e. 
A medical examination under chapter 10 is not required, but will be administrated if requested in writing by the soldier. A mental status evaluation is also required when a soldier being processed for discharge under chapter 10 requests a medical examination. 


5. 
 Per Manual for Courts-Martial, Article 112a, UCMJ –– Wrongful use, possession, etc., of controlled substances, maximum punishment includes a punitive discharge. 

6. 
 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. 
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