ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 June 2019 DOCKET NUMBER: AR20170011830 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application For The Review of Discharge From The Armed Forces of The United States) * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge From Active Duty) 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. He was not offered a lesser degree of punishment for his offense and was told that he had to accept the under other than honorable discharge characterization of service for his offense. b. He admits to possessing a small quantity of marijuana, however, he feels that he should have been offered nonjudicial punishment, Article 15, rather than court-martial charges. c. He adds that at no time was he ever incarcerated by military authorities, and since his discharge he has not used illegal narcotics. He further states that he was young and realizes his past mistakes; however, he believes that he served his country proudly for over 3 years and hopes the Board will consider his upgrade request. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 29 January 1980. b. On 9 February 1981, he accepted nonjudicial punishment, Article 15, for failure to go at a prescribed time to an appointed place of duty. He received a reduction to the grade of E2 (suspended), forfeiture of $50 pay and 14 days extra duty. c. On 24 February 1982, he accepted nonjudicial punishment, Article 15, for failure to go at a prescribed time to an appointed place of duty on 3 February 1982 and 12 February 1982 and for being absent from his place of duty on 17 February 1982. He received a forfeiture of $112 pay and 14 days extra duty. d. On 29 October 1982, he accepted nonjudicial punishment, Article 15, for using disrespectful language towards his superior noncommissioned officer. He received a forfeiture of $50 pay and 14 days extra duty. e. Court-martial charges were preferred on 18 March 1983. His DD Form 458 (Charge Sheet) indicates he was charged with: * one specification of the wrongful use of marijuana, a controlled substance * one specification of wrongful possession of marijuana, a controlled substance * one specification of being absent without leave from 1 February 1983 to 28 February 1983 f. He consulted with legal counsel and 28 April 1983, and subsequently, requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge For the Good of the Service). He acknowledged: * he was guilty of the charge against him or of a lesser included offense which also authorizes the imposition of a bad conduct or dishonorable discharge * if his request was accepted, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate * he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws * he can expect to encounter substantial prejudice in civilian life because of the Under Other Than Honorable Discharge g. Consistent with the chain of command’s recommendation, on 2 June 1983, the separation authority approved the applicant’s request for separation under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge For the Good of the Service), in effect at the time. He was reduced to the grade of PVT/E1 and furnished an Under Other Than Honorable Discharge Certificate. h. The applicant was discharged on 13 June 1983. His DD Form 214 shows he was discharged with an under other than honorable conditions characterization of service. He completed 3 years, 3 months and 18 days of active service and 27 days of lost time. It also shows he was awarded or authorized the: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Hand Grenade 4. By regulation, a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. A discharge under other than honorable conditions normally is appropriate for a soldier discharged for the good of the service. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions 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. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. One Board member voted to grant an under honorable conditions characterization based upon the level of misconduct. The majority of 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 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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, 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) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) is a separation with honor. 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. Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provides procedures for separating soldiers who have committed an offense or offenses, UCMJ includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. An under other than honorable discharge certificate is normally appropriate for a member who is discharged for the good of the service. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011830 4 1