ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20170012584


APPLICANT REQUESTS:  

* to upgrade his under other than honorable conditions discharge to a general, under honorable conditions discharge or an honorable conditions discharge
* to appear before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD Form 149 (Application for Correction of Military Record).

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 (ABCMR) 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 it has been more than 20 years and marijuana is now legal in Washington, D.C.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 7 June 1978.

	b.  On 1 August 1979, a civil court found him guilty of marijuana possession and fined him $300.00.

	c.  On 9 August 1979, his immediate commander notified him that he was initiating action to discharge him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Conviction by Civil Court).  The specific reason for this action was based on his conviction by the District Court of Limestone County, AL, for the charge of illegal position of marijuana. 

	d.  After consulting with legal counsel, on 8 September 1979 he made election of his rights under the provisions of AR 635-200, chapter 14.  He waived consideration of his case by a bard of officers and personal appearance before a board of officers.  He acknowledged:

* maximum punishment
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued

   e.  On 24 August 1979, the commander initiated separation action against the applicant under the provisions of chapter 145 of AR 635-200 due to civil conviction.  He stated that the applicant was tried and convicted on 1 August 1979 for illegal possession of marijuana, an offense for which the maximum penalty under the Uniform Code of Military Justice (UCMJ) is confinement for one year or more.

	f.  On 18 September 1979, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation.  He would be discharged under the provisions of AR 635-200, chapter 14, issued an Under Other than Honorable Conditions Discharge Certificate, and reduced to the lowest enlisted grade.

	g.  On 20 September 1979, he was discharged from active duty under the provisions of AR 635-200, chapter 14.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 11 months and 8 days of active service with 126 days of lost time from 6 April 1979 to 27 May 1979, 31 May 1979 to 1 August 1979, and 27 August 1979 to 6 September 1979.  

	h.  On 19 January 1982, the Army Discharge Review board determined that he was properly discharged.  His request for a change in the type and nature of his discharge was denied.  

4.  By regulation (AR 15-185 (ABCMR)), an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

5.  By regulation (AR 635-200), when initially convicted by civil authorities, or action is taken which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement for one year or more, an individual will be considered for discharge.  An under other than honorable conditions discharge certificate is normally appropriate for a member discharged for conviction by civil court.

6.  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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the pattern of misconduct which led to the applicant’s separation and a lack of character evidence submitted by the applicant to show that he has learned and grown from the events leading to his separation, the Board concluded that the characterization of service received at the time of discharge was appropriate.

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 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, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-13a (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period or obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-13b (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory by not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 (Conviction by Civil Court) states when initially convicted by civil authorities, or action is taken which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement for one year or more, an individual will be considered for discharge.  An under other than honorable conditions discharge certificate is normally appropriate for a member discharged for conviction by civil court.

3.  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 begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

	a.  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 application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

4.  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 the discharge, which may be warranted based on equity, or relief from injustice.  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 based on 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.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, 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 upgrade service characterization.  

ABCMR Record of Proceedings (cont)	 AR20170012584


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