ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 June 2019 DOCKET NUMBER: AR20180011195 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge characterization 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 would like for his discharge to be upgraded to a general discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 June 1980. b. According to his DD Form 458 (Charge Sheet), dated 6 April 1982, court-martial charges were preferred against him for three specifications of: * wrongfully having in his possession, on 5 March 1982, 11.7 grams, more or less, of marijuana with the intent to sell to a member of the Drug Suppression Team * wrongfully transferring, on 5 March 1982, 11.7 grams, more or less, of marijuana to a member of the Drug Suppression Team * wrongfully sell, on 5 March 1982,11.7 grams, more or less, of marijuana to a member of the Drug Suppression Team c. On 20 April 1982, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment a. authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge if the request is approved and of the procedures and rights available to him. d. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf e. On 2 October 1991, his commanding officer recommended he be discharged for the good of the service with an under other than honorable conditions discharge. f. Consistent with the chain of command's recommendation, the separation authority approved his request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduced in rank to private/E-1. g. His DD Form 214 shows he was discharged on 12 May 1982 for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. He completed 1 year and 10 months and 26 days of active service, with no lost time. His record also shows he was awarded or authorized the Army Service Ribbon. 4. By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts- Martial, includes a bad conduct or dishonorable discharge, may submit a request for 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. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, tthe applicant's service record and DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the type of misconduct, the absence of in-service mitigating factors and the absence of post- service achievements or letters of character evidence submitted by the applicant to support a clemency determination. Based on a preponderance of evidence, the Board concluded that the characterization of service received at the time of separation was not in error or unjust. 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. 6/19/2019 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, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a provided that an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate 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. b. Paragraph 1-13b provided that a general discharge is a separation from the army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The provisions of the Table of Maximum Punishments, Section B, paragraph 127c, MCM 1969 (Rev) are not applicable to requests for discharge pursuant to this chapter. The request for discharge may be submitted at any time after court- martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial, convening authority. A member who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge for the good of the Service. 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 1. 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.