ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 June 2019 DOCKET NUMBER: AR20170016593 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. 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 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 he was not represented well by his lawyer and that he made a terrible conscious decision to use marijuana and intent to distribute. 3. A review of the applicant’s service record shows: a. He enlisted in the Army Reserves on 10 January 1979 and then he enlisted in the Regular Army on 22 September 1982. b. He served in Germany from 13 December 1980 to 8 December 1982. c. On 14 January 1984, he accepted non-judicial punishment for breaking his company restriction; his punishment consisted of reduction to SPC/E-4. d. Court martial charges were preferred against him on 17 April 1984. His DD form 458 (Charge Sheet) indicates he was charged with one specification of wrongfully possessing 10.70 grams of marijuana with the intent to distribute a controlled substance. e. On 18 May 1984, he consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). He acknowledged: * he is guilty of the charge against him or of a lesser included offense * he did not desire further rehabilitation * he has no desire to perform further military service * the imposition of a bad conduct or dishonorable discharge * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions * he may be deprived of many or all Army benefits * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he would be administratively reduced to the grade of E-1 * he may expect to encounter substantial prejudice in civilian life because of an other than honorable conditions discharge f. Consistent with the chain of command recommendation, on 7 June 1984, the separation approval authority approved the applicant’s request for discharge for the good of the service. He would be discharge with an under other than honorable conditions discharge and reduced to the lowest enlisted pay grade. g. On 20 June 1984, he was discharged from active duty under the provisions of AR 635-200, chapter 10. He completed 5 years, 3 months and 15 days of active service. It also shows he was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon 4. By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge may submit a request for a discharge 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 relief is not warranted. The applicant’s contentions were carefully considered. The Board considered the applicant's service record, the frequency and nature of the misconduct and the reason for his separation. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of clemency. Based upon a preponderance of evidence, the Board determined that the applicant's discharge characterization was warranted as a result of the misconduct. However, the Board did note that the applicant had a period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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 the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 6 March 1979 until 21 September 1982.” 2. 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 upgrading the characterization of his discharge. 6/26/2019 X CHAIRPERSON Signed by: 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 Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states and honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service general has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious than any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states 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. Paragraph 3-7c (Under other than honorable conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. 3. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 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 (BCMNRs) 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 court-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. 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. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS//