ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20180013789 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 9 April 2019, in which the Board majority recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 8 July 1988 to reflect a General, under honorable conditions character of service. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 30 September 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: BOARD DATE: 9 April 2019 DOCKET NUMBER: AR20180013789 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge and a personal hearing before the Board. 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 July 1988 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 is requesting an upgrade of his discharge based on his military performance service record and his record as a civilian citizen. At the time of his separation, he did not make the proper decision or receive the proper guidance regarding his reason for separation. 3. The applicant was appointed as a Reserve commissioned officer of the Army on 21 May 1982. He entered active duty on 17 August 1984. 4. A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 12 February 1988, shows the applicant was flagged pending trial by court-martial for alleged use of a controlled substance. 5. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review in this case. 6. Subsequent to receiving legal counsel, the applicant voluntarily submitted his resignation from the Army on 22 April 1988, for the good of the service under the provisions of Army Regulation 635-120 (Officer Resignation and Discharges), Chapter This memorandum shows: * he had not been subjected to coercion with respect to this resignation * he had been advised of and fully understood the implications of this action * he had been fully advised and counseled in this matter * he had been afforded an opportunity to present matters in explanation, mitigation, or defense of his case * he acknowledged he understood that if his resignation were accepted his service could be considered as being UOTHC 7. The applicant's chain of command unanimously recommended approval of the applicant’s resignation for the good of the service. 8. The applicant was discharged on 8 July 1988, under the provisions of Army Regulation 635-120, chapter 5, for conduct triable by court-martial. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, two Board members determined there is insufficient evidence to grant relief. The dissenting Board member granted relief stating that under current liberality for possession of marijuana in many states coupled with the chain of command recommending an honorable discharge, the applicant should be granted clemency and have his discharge upgraded. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 600-8-24 (Officer Transfers and Discharges), currently in effect, prescribes the officer transfers from active duty to the Reserve component and discharge functions for all officers on active duty for 30 days or more. a. Paragraph 1-22(a) states an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. b. Paragraph 1-22(b) states an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious. 4. Army Regulation 635-120, in effect at the time, prescribed procedures whereby an officer on active duty may tender his or her resignation or be discharged and whereby officers on active duty or retired officers may be dropped from the rolls of the Army. Chapter 5 provided for resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court- martial. A resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being UOTHC. 5. 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) AR20180013789 2 1