ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 April 2019 DOCKET NUMBER: AR20180000189 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) 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 feels that his discharge was inequitable. He never had an Article 15, under the Uniform Code of Military Justice (UCMJ) or any other disciplinary action brought up against him prior to the incident that led to his discharge. 3. The applicant, having prior enlisted service in the California National Guard of the United States, on 8 October 1987, at the age of 21 years old, he enlisted in the Regular Army for a term of 4 years. 4. On 1 May 1990, court-martial charges were preferred against the applicant for one specification of using marijuana; one specification of possessing five grams of marijuana, and one specification of violating a lawful general regulation by possessing drug paraphernalia. 5. On 17 May 1990, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 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 AR 635-200, chapter 10. The applicant elected to submit a statement on his own behalf. He stated: a. He hoped the command would give a lot of thought to whether he could receive a general, under honorable conditions discharge. He served two and a half years without any spot on his record whatsoever. He had hard jobs and had been successful in all of them. This was especially true in his job in the 86th Evacuation Hospital, Fort Campbell, KY. b. The incident was the first time he had done anything like that and it was all due to the pressure of a person he thought was a friend. He did not say that to make an excuse, he was still the one who did wrong but it did mean that this was not who he was really like. It was just a one-time mistake and he knew it had to end his career. But since the rest of his time in the Army was so good, and he was told that the regulation regarding chapter discharges stated to review all of a Soldier’s service, he asked the command to give him a general discharge. That way, a one-time stupid mistake, which was not like anything else he had ever been or done, would not have to wreck the rest of his life. 6. The applicant's chain of command recommended approval of his request and on 22 May 1990, the appropriate separation authority approved the applicant's request directing the applicant be reduced to the lowest enlisted grade and he be issued a discharge under other than honorable conditions. 7. On 30 May 1990, he was discharged accordingly. His service was characterized as UOTHC. He completed 2 years, 7 months, and 23 days of net active service this period, 6 months and 16 days of total prior active service, and 1 year, 11 months, and 28 days of foreign service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * M-16 Marksman Marksmanship Qualification Badge * Hand Grenade Marksmanship Qualification Badge Service Ribbon * Overseas Service Ribbon * Army Achievement Medal 8. The applicant states he feels that his discharge was inequitable. He never had an Article 15, under the Uniform Code of Military Justice (UCMJ) or any other disciplinary action brought up against him prior to the incident that led to his discharge. His record shows he enlisted at the age of 21 years old and charges were preferred against him for using marijuana, possessing marijuana, and violating a lawful general regulation by possessing drug paraphernalia. He completed 31 months of his 48 months contractual obligation. 9. AR 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. 10. In reaching its determination, the Board can consider the applicant’s petition and 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 that there is sufficient evidence to grant partial relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of previous honorable service to be compelling in light of the fact that there was only one instance of misconduct, and the lack of evidence that the unit attempted to rehabilitate the applicant. Therefore, the Board found that the under other than honorable discharge was inequitable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 for the period ending “90-05-30” showing his characterization of service as General Under Honorable Conditions and the narrative reason as secretarial authority, with an appropriate Separation Code and Reentry Code. ___________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. 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, it states: a. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. 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. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 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 the applicant. //NOTHING FOLLOWS//