SAMR-RB 19 October 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160003097 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 1O October 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 19 February 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003097 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003097 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. ______________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. BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160003097 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests to upgrade his character of service from under other than honorable conditions to under honorable conditions (general). 2. The applicant states his use of marijuana may have been sufficient reason for discharge, but it was by no means a court-martial worthy offense. He understood the gravity of his misjudgment and offered no excuse or retort for the decision. His immaturity and lack of reasoning at the time was undoubtedly regrettable and has resulted in a multitude of consequences for the past 30 years. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was appointed as a second lieutenant in the U.S. Army Reserve on 24 April 1983. He entered active duty on 25 August 1983. He was promoted to first lieutenant on 25 February 1985. 3. On 16 August 1985, he received a General Officer Letter of Reprimand for failing to return to his appointed place of duty, making a false official statement, and conduct unbecoming an officer and a gentleman. The letter is filed in his official military personnel file. 4. A DD Form 458 (Charge Sheet) shows the applicant was charged with wrongfully using marijuana during the month of March 1986. 5. On 10 April 1986, the applicant submitted an unqualified resignation under the provisions of Army Regulation 635-120 (Personnel Separations - Officer Resignations and Discharges), chapter 3 (Unqualified Resignation). 6. On 14 and 16 April 1986, the applicant's immediate and intermediate commanders recommended disapproval of the applicant's request for unqualified resignation. The immediate commander stated that the applicant was pending trial by general court-martial and the charges had been read. Therefore, the application for unqualified resignation did not comply with Army Regulation 635-120. 7. On 21 April 1986, the Assistant Adjutant General recommended disapproval of the applicant's request for unqualified resignation and stated the action was in contravention with Army Regulation 600-31 (Suspension of Favorable Personnel Actions for Military Personnel in National Security Cases and Other Investigations·or Proceedings). 8. On 13 May 1986, the Department of the Army Ad Hoc Review Board, Army Council of Review Boards, by unanimous vote recommended approval of the applicant's request for resignation for the good of the service and the issuance of an under other than honorable characterization of service. The recommendation of the Department of the Army Ad Hoc Review Board was approved. 9. On 5 June 1986, the applicant was discharged. His DD Form 214 shows: a. He completed 2 years, 9 months, and 11 days of creditable active service with no lost time. b. The separation authority was Army Regulation 635-120 (Officer Resignations and Discharge), chapter 5 and the narrative reason for separation was shown as conduct triable by court-martial. c. He was awarded or authorized: * Army Achievement Medal * Army Service Ribbon * Oversea Service Ribbon 10. On 19 January 1988, the Army Discharge Review Board denied the applicant's request for an upgrade of his under other than honorable conditions discharge, finding his discharge was proper and equitable. REFERENCES: 1. Army Regulation 635-120, in effect at the time, implemented the statutory provisions of Title 10, U. S. Code, governing active duty officer resignations and discharges. a. Chapter 5 stated an officer may submit a resignation for the good of the service when court-martial charges are preferred against him with a view toward trial by general court-martial. (1) Commanders will ensure that there is no element of coercion in submitting a resignation for the good of the service. (2) The officer concerned will be afforded the opportunity to consult with qualified legal counsel (either civilian counsel retained by him or military counsel made available to him) and will be allowed a reasonable period of time to make a personal decision when a resignation is contemplated. The legal counsel should fully advise the officer of the implications of his voluntary action. b. A resignation for the good of the service, when approved by Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions, in which case the officer will be furnished an Under Other Than Honorable Conditions Discharge Certificate. 2. Army Regulation 635-100, in effect at the time, stated the Secretary of the Army, or designee, will appoint a board of review to furnish recommendations as to the disposition of a case wherein the officer is being considered for elimination. The board of review will conduct a thorough review and can recommend either acceptance or rejection of the officer's resignation as well as the character of service to be issued. The Secretary of the Army, or designee, will take final and conclusive action. a. Normally, an officer's service is characterized as honorable when the officer is released from active duty and returned to USAR or ARNGUS control. b. An officer's service normally will be characterized as under honorable conditions or under other than honorable conditions when such a determination is made by a Department of the Army Active Duty Board for officers being released from active duty because of misconduct, moral or professional dereliction. 4. 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. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the applicant. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. His record shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. Discharges under the provisions of chapter 5 of Army Regulation 635-120 were voluntary requests for discharge in lieu of trial by court-martial. All requirements of law and regulation are presumed to have been met, and it is further presumed the rights of the applicant were fully protected throughout the separation process. 2. Contrary to his opinion, the evidence of record shows he faced a court-martial charge that could have resulted in a sentence that included a punitive discharge. The applicant's act of personal misconduct by using marijuana clearly established a basis for his separation as an officer. This misconduct also rendered his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003097 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003097 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2