IN THE CASE OF: BOARD DATE: 15 April 2019 DOCKET NUMBER: AR20180000224 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Three letters of support FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 they separated him for the benefit of the service, not due to disciplinary reasons. a. He has not cared about himself for the past 38 years; it took 17 years in prison to wake him up. He has been clean and sober for the past 3 years and it took the power of his God to shake him. Now he lives on church property and the church has voted him in as a trustee; he drives people to church. b. In November, the church set up an addiction ministry and the church leadership gave him the privilege of using his testimony to help others; he has taken counseling classes and is becoming an addiction counselor. There are things in his life he wishes he could change, but he recognizes he can only affect what he does today; he requests a second chance. 3. The applicant provides three letters of support, which essentially affirm the applicant's addiction to drugs and how his faith has transformed his life. The applicant is now a good, hardworking person who is devoted to his church. 4. The applicant's service records show: a. He enlisted in the Regular Army on 2 July 1982 for a 3-year term; he was 19 years old. Following initial training, he was assigned to, arriving on 29 November 1982. At some point prior to April 1983, the applicant's leadership promoted him to private (PV2)/E-2. b. In April 1983, during a U.S. Army Criminal Investigation Command (CID) undercover investigation, the applicant sold suspected hashish to an undercover military police officer. The CID laboratory subsequently confirmed the substance was hashish. c. On 12 May 1983, the applicant's commander preferred court-martial charges against him for two specifications of wrongful distribution, and two specifications for wrongful possession of marijuana in the hashish form (Uniform Code of Military Justice (UCMJ) violations of Article 134 (General Article – Wrongful possession/sale of marijuana)). d. On 18 May 1983, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charges. The form does not show his election with regard to the submission of a statement in his own behalf; none is included with the applicant's record. e On 9 June 1983, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; he also directed the applicant's reduction to private/E-1. On 1 July 1983, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year of his 3-year term. He was awarded or authorized the Army Service Ribbon and a marksmanship qualification badge. 5. The applicant contends, in effect, his faith has transformed him and he is now addiction-free; he submits letters of support that reflect the positive changes in his life. The possession and distribution of marijuana included a dishonorable discharge as a punishment. Discharges under chapter 10, AR 635-200 were voluntary, and were available in lieu of trial by court-martial once charges had been preferred. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published 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 letters of support 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. Based upon the record, 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 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. 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 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated 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. c. Chapter 10 provided that a member who had committed 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 at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 8-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 4. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishments for violation of Article 134 (General Article – Wrongful possession/sale of marijuana)) included a dishonorable discharge. 5. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180000224 3 ABCMR Record of Proceedings (cont) AR20180000224 1