IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180008320 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 10 April 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 28 February 1985 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 he was a noncommissioned officer (NCO) who came up positive on a single drug screening and was booted out. He wanted to make the Army a career but wasn't given a second chance. 3. The applicant enlisted in the Regular Army on 14 May 1980 and reenlisted on 28 April 1983. 4. The applicant received a Letter of Reprimand on 12 September 1984 for mishandling a loaded weapon, resulting in its discharge, on or about 25 August 1984. 5. The applicant accepted nonjudicial punishment (NJP) on 13 November 1984, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana, from on or about 15 September 1984 through on or about 25 September 1984. Consistent with his punishment, he was reduced in rank/grade from sergeant/E-5 to specialist four/E-4. 6. The applicant's immediate commander notified the applicant on 16 January 1985 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct. The applicant acknowledged receipt of the proposed separation action on the same date. 7. The applicant consulted with counsel on 23 January 1985 and was advised of the basis for the contemplated action to separate him under Army Regulation 635-200, paragraph 14-12c and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He further acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a UOTHC discharge was issued to him. 8. The applicant's commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge (approval is not dated), by reason of misconduct, directed that he be reduced to the lowest enlisted grade, and that his service be characterized as UOTHC. 9. The applicant was discharged on 28 February 1985, under the provisions of Army Regulation 635-200, paragraph 14-12d, by reason of misconduct – drug abuse. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service characterization was UOTHC. His DD Form 214 further shows: * he had four years, nine months, and 17 days of active duty service with no lost time * he was awarded the Army Good Conduct Medal and the Army Achievement Medal 10. Regulations in effect at the time required that Soldiers in pay grade E-5 and above will be discharged following a drug abuse charge. 11. The Board should consider the applicant's statement, awards, and earlier period of honorable service 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 relief and upgrade the applicant’s discharge characterization to General, Under Honorable Conditions. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, and found the applicant had three years of honorable service and was not afforded rehabilitation services for his misconduct. By current standards, the punishment the applicant received for his misconduct is harsh. Therefore, the Board found that the applicant’s case warrants clemency and should receive a discharge upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 amending the applicant’s discharge characterization on his DD Form 214, ending 28 February 1985, to “General, Under Honorable Conditions.” 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): A review of the applicant's record shows his DD Form 214, for the period ending 28 February 1985, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * IMMEDIATE REENLISTMENTS THIS PERIOD: 14 MAY 1980 UNTIL 28 APRIL 1983; and 29 APRIL 1983 UNTIL 28 FEBRUARY 1985 * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 14 MAY 1980 UNTIL 28 APRIL 1983 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to all benefits provided by law. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It provides: (1) For separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. (2) Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate. (3) Paragraph 14-12c (Commission of a Serious Offense) applies to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. Use of illegal drugs as considered serious misconduct. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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) AR20180008320 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008320 5 ABCMR Record of Proceedings (cont) AR20180008320 4