BOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180013001 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 16 September 2018 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 his reason for discharge was for negative contact with law enforcement, yet he was never charged or even given any kind of hearing. He did have one incident pertaining to a rental television that he did not pay for, because he was in the field, and the other incident was related to marijuana found in his room, which belonged to his roommate. 3. The applicant enlisted in the Florida Army National Guard on 7 March 1979. 4. Orders 203-20, issued by Headquarters, First United States Army, Fort George G. Meade, MD on 17 November 1979, ordered the applicant to active duty effective 14 January 1980, with an 18 month and 27 day commitment. 5. The applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniformed Code of Military Justice, on the following dates for the indicated offenses: a. On 8 February 1980, for being absent without leave (AWOL) from on or about 14 January 1980 through on or about 29 January 1980. b. On 1 December 1980, for having in his possession some amount of marijuana and for violating a lawful regulation by being in an off limits area after the hour of darkness, on or about 11 November 1980. 6. The applicant received a Letter of Reprimand on 9 June 1980. During a room inspection on 2 May 1980, the odor of marijuana was detected emitting from his room. Upon entering the room, he was found to be in possession of two marijuana cigarettes. A further search of his room revealed a smoking device. The commander told the applicant that he was dismayed that a Soldier in his command would have such a serious disregard for the law. The applicant was told that it was a gross breach of the standards expected of a Soldier and that his continued association with marijuana would not be tolerated. He was inform that any further deviation from the standards and requirements of the command and the Army could result in severe action against him. 7. The applicant's commander notified the applicant on 18 March 1981 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for misconduct. As the basis for the recommendation, his commander noted that he had been caught three times with marijuana. 8. The applicant's commander formally recommended his separation from service on 18 March 1981, under the provisions of Army Regulation 635-200, Chapter 14, for misconduct. 9. The applicant consulted with counsel on 20 March 1981 and was advised of the basis for the contemplated separation actions for a pattern of misconduct, the rights available to him, and the effect of any action taken by him in waiving his rights. After consulting with counsel, he acknowledged receipt of the notification and he waived his rights and he elected not to submit a statement in his own behalf. 10. The separation authority approved the recommendation for discharge on 29 April 1981 and directed that the applicant be reduced to the lowest enlisted grade and separated with a UOTHC discharge. 11. The applicant was discharged on 4 May 1981, under the provisions of Army Regulation 635-200, paragraph 14-33b (1), for misconduct – frequent incidents of a discreditable nature with civil or military authorities. His DD form 214 (Certificate of Release or Discharge from Active Duty) confirms his service was characterized as UOTHC. 12. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 13. The Board should consider the applicant's provided statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant 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 did not find any evidence of error, injustice, or inequity; had limited creditable service, no wartime service, no mitigating circumstances for the misconduct, and no remorse for the misconduct. The applicant claimed that there was only one incident of marijuana possession and it belonged to his roommate, but the record indicates that the applicant was found with marijuana on three different occasions. Furthermore, the applicant claimed that he was never charged nor afforded the opportunity to have his case heard, however, the record indicates that the applicant was notified of the charges and the applicant waived the opportunity to have his case heard by a board of officers. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate for 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 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to 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. Paragraph 3-7b provides 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 3. 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) AR20180013001 4 ABCMR Record of Proceedings (cont) AR20180013001 1