ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  31 July 2019

	DOCKET NUMBER:  AR20180009284


APPLICANT REQUESTS:  an upgrade of his under other than honorable condition discharge to honorable.

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 the reason for his request is to meet eligibility requirements for Veterans benefits, especially healthcare.

3.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army on 25 February 1981.  

	b.  On 25 August 1982, court-martial charges were preferred against the applicant.  His DD Form 458 (Charge Sheet) shows he was charged with the following specifications:

* one specification of wrongful possession of 6.00 grams, more or less, of marijuana in the hashish form on or about 3 June 1982
* one specification of wrongfully sell 6.00 grams, more or less, of marijuana in the hashish form on or about 3 June 1982
* one specification of wrongfully transfer 6.00 grams, more or less, of marijuana in the hashish form on or about 3 June 1982
* one specification of wrongful possession of 7.97 grams, more or less, of marijuana in the hashish form on or about 30 July 1982
* one specification of wrongfully sell 7.97 grams, more or less, of marijuana in the hashish form on or about 30 July 1982
* one specification of wrongfully transfer 7.97 grams, more or less, of marijuana in the hashish form on or about 30 July 1982

	c.  On 19 September 1982, the applicant consulted with legal counsel and subsequently requested discharge under the provisions of Army Regulation (AR)      635-200 (Personnel Separations – Enlisted Personnel), Chapter 10.  In his request, he acknowledged:

* the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ)
* the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him
* admission of guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a punitive discharge
* he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans’ Administration, and that he may be deprived of his rights and benefits as a Veteran under both Federal and State laws
* he also understood that he may encounter substantial prejudice in civilian life because of an undesirable discharge
* he elected not to submit any statements in his behalf

	d.  On 27 September 1982, consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial.  The separation authority directed that the applicant be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.

	e.  On 20 October 1982, the applicant was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions discharge. He completed 1 year, 7 months, and 26 days of active service.  It also shows he was authorized or awarded:

* Army Service Ribbon
* Overseas Service Ribbon
* Expert Marksmanship Qualification Badge with Pistol Bar (.45 Caliber)

	f.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations.

4.  By regulation, a member who has committed an offense or offenses the punishment for which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged 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 applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the short term of honorable service completed prior to multiple drug offenses and a lack of demonstrated remorse for the events leading to his separation, 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.


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

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member’s service general 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.  Paragraph 3-7b (General Discharge) states that 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.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 (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 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, 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.

//NOHTING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180009284


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