ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 April 2019

	DOCKET NUMBER:  AR20160016067


APPLICANT REQUESTS:  The applicant requests his under conditions other than 
honorable (UOTHC) discharge be upgraded to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Extract Army Regulation (AR) 600-85
*	Applicant Petition
*	Extract of Medical Records

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.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR2000045387 on 30 January 2001.

3.  The applicant states his discharge was based on one incident otherwise his service 
was honorable and uneventful.  His negative discharge exceeded the current U.S. Army 
policy.  He was a drug user and his medical records clearly indicate he was a heroin 
user.  He was never given the opportunity by his commander, to be placed in any type 
of drug rehabilitation program.  When he was discharged in 1979, the Army’s policy was 
clearly biased towards rehabilitation.  

4.  On 14 June 1977, the applicant enlisted in the Regular Army at the age of 19.

5.  On 5 February 1979 charges were preferred against the applicant for one 
specification of wrongful possession of heroin and one specification of wrongful sale of 
heroin; he was also charged with one specification of assault.

6.  The applicant voluntarily requested discharge for the good of the service in lieu of 
trial by court-martial under the provisions of Army Regulation 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 Army Regulation 635-200, 
chapter 10.  He signed a request for discharge for the Good of the Service and 
indicated he would not submit statements in his own behalf.

7.  On 7 February 1979, the applicant was arraigned.  The proceedings were terminated 
by withdrawal of the charges and specifications by the General Court-Martial Convening 
Authority because of the pending approval of the applicant’s request for Chapter 10.  
The charges and specifications were dismissed and all rights, privileges, and property of 
which the accused may have been deprived were restored.

8.  On 18 April 1979, the appropriate authority approved the applicant’s request for the 
good of the service.

8.  On 10 July 1979, he was discharge accordingly.  His DD Form 214 shows he 
completed 2 years, and 27 days.  

9.  The applicant applied to the ADRB to upgrade his discharge.  On 23 June 1983, the 
ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined 
that the applicant's discharge was proper and equitable and that the discharge was 
properly characterized.  

10.  The applicant states his discharge was because of one incident.  He believes the 
Army was biased towards rehabilitation in 1979 and was never given the opportunity to 
be placed in any type of drug rehabilitation program.  His records show on 24 April 
1977, he received a chapter 14 physical and during the examination it was noted he had 
needle tracks on both forearms.  His records also show on 22 November 1978 during a 
medical exam he admitted to using heroin.  He also provides an extract of AR 600-85, 
Chapter 5, (Rehabilitation); a discharge upgrade brief or petition; an extract of his 
medical records.

11.  Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-
lieu of trial by court martial.  A member may be awarded an honorable or general 
discharge, if during the current enlistment period of obligated service he has been 
awarded a personal decoration or if warranted by the particular circumstances of a 
specific case.  Paragraph 5-3 states the separation of enlisted personnel is the 
prerogative of the Secretary of the Army and will be effected only by his authority.  The 
discharge or release of any enlisted member of the Army for the convenience of the 
Government will be at the Secretary’s discretion and with the type of discharge as 
determined by him.

12.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published DOD guidance on equity, 
injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions and medical concerns 
were carefully considered.  The Board applied Department of Defense standards of 
liberal consideration to the complete evidentiary record and did not find any evidence of 
error, injustice, or inequity.  The Board agreed that the applicant's discharge 
characterization was warranted as a result of the misconduct

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 to amend the decision of the ABCMR set forth in Docket 
Number AR2000045387 on 30 January 2001.


	  
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.



ADMINISTRATIVE NOTE(S):

Not Applicable

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 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, set forth the basic authority for the administrative separation of enlisted 
personnel.

   a.  Chapter 10 stated a member who was charged with 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, a discharge under other than honorable conditions was 
normally issued to an individual who was discharged for the good of the service.

     b.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.

     c.  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.

     d.  An UOTHC is an administrative separation from the service under conditions 
other than honorable.  It may be issued for misconduct.  In a case in which an UOTHC 
is authorized by regulation, a member may be awarded an honorable or general 
discharge, if during the current enlistment period of obligated service he has been 
awarded a personal decoration or if warranted by the particular circumstances of a 
specific case. 

3.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160016067
	
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