ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20180013058 APPLICANT REQUESTS: an upgrade of 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) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Statement of Character Letter 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 does not believe the actions that happened justified a discharge of under other than honorable, due to the fact that marijuana is legal in most states now. 3. The applicant provides: * his enlistment record and personnel qualification record * enlistment physical, showing he was eligible for enlistment * separation physical showing he was fully qualified for separation * Charge Sheet and voluntary separation packet under chapter 10 4. A review of the applicant’s service record shows: a. He was inducted into the Army of the United States on 29 October 1973. b. He served at Ft Gordon, GA from 10 January 1974 to 17 May 1974. a. c. Court-martial charges were preferred against him on 9 April 1974. His DD Form 458 (Charge Sheet) indicates he was charge with four specifications of (wrongfully and illegally using tetrahydrocannabinol, commonly called marihuana). d. He consulted with legal counsel on 12 April 1974 and subsequently requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he acknowledged: * maximum punishment * he is guilty of the charge(s) against him or of lesser included offense(s) * he did not desire further rehabilitation or further military service * he understood that if his request for discharge was accepted he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * he may be deprived of many or all Army benefits administrated by the Veteran Administration * he may be deprived of his rights and benefits of a Veteran under both Federal and State laws * he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge e. Consistent with the chain of command recommendation, on 26 April 1974, the separation authority approved the applicant’s request for discharge for the good of the service. He would be discharged with an Undesirable Discharge Certificate and recued to the lowest enlisted grade. f. On 17 May 1974, he was discharged from active duty under the provision of AR 635-200, chapter 10. His DD Form 214 shows he completed 6 months and 19 days of active service. It also shows he was awarded or authorized the: * National Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 5. By regulation, an individual whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate would normally be furnished individuals discharged for the good of the service. 6. The applicant applied to the Army Discharge Review Board, for an upgrade on 6 August 1975, but the Board determined he was properly discharged and denied his request. 7. In reaching it 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 there is sufficient evidence to grant relief. The applicant’s contentions and character letter was carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. One potential outcome discussed was to deny relief based on four instances of illegal drug use. However, based upon the totality of the circumstances, the Board agreed to grant relief; however, the misconduct does not warrant an upgrade to an honorable discharge. The Board agreed to grant clemency in the form of an under honorable conditions characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X : X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X : 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 reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 6/25/2019 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9 (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length or service, grade and general aptitude. b. Paragraph 1-9 (General Discharge) is a separation from the Army under honorable conditions of an individual whose military records is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, unsuitability, homosexuality, or security. c. Chapter 10 of that regulation states an individual whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate would normally be furnished individuals discharged 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 the 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 1. character of service granted solely on equity, 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 upgrade service characterization.