IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20180013840 APPLICANT REQUESTS: The applicant requests that her Under Other Than Honorable Conditions (UOTHC) discharge be upgraded. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of Discharge) * Personal Statement * Letter of Support 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20040002984 dated 24 February 2005. 3. The applicant is requesting that her UOTHC be upgraded. She states that the discharge as inequitable because it was based on one isolated incident in over 128 months of service. The applicant further states that she had no other adverse actions and should have been offered the opportunity for drug rehabilitation and counseling but not discharged. Of note, the applicant’s records do not show if she was enrolled in the Army Substance Abuse Program; however, the Army Review Board docket number AR20040002984 states that the applicant was enrolled in ASAP on 5 January 1988. 4. The applicant enlisted in the Army on 8 November 1977. She successfully completed Basic and Advanced Individual Training and was awarded the MOS of 71N (Traffic Management Coordinator). 5. Her records shows that she reenlisted on 31 July 1981 for 3 years, on 11 February 1985 for 3 years, and extended her contract on 11 September 1987 for 3 years to meet service obligations for an overseas tour. The highest rank she obtained was Staff Sergeant (SSG/E6)) on 3 August 1986. 6. On 6 January 1988, the applicant was charged with wrongful use of a controlled substance (marijuana). She was reduced to Sergeant (SGT/E5). 7. On 24 February 1988, the applicant underwent a mental examination. The exam stated the applicant was psychiatrically cleared for any administrative actions as deemed appropriate by the unit Commander. 8. On 25 February 1988, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (abuse of illegal drugs). She applicant consulted with counsel and requested consideration of her case by a board of officers. a. She also elected to submit a statement on her own behalf which stated in summary, the applicant would like to continue her career and requests a second chance to prove to herself and her superiors that she is a dedicated Soldier. She has received above average evaluations since becoming a Noncommissioned Officer (NCO). She believed that she was an excellent Soldier and had no violations of any regulations since becoming a NCO. b. She applicant provide letters of support depicting her as a hard work with great potential. 9. On 15 March 1988, the intermediate commander recommended approval of the separation requests, stating that the applicant admitted that she had lied to her chain of command concerning her use of illegal drugs and that she stated she has been abusing drugs since her entry on active duty. 10. On 16 May 1988, the applicant appeared before a board of officers. The board recommended that the applicant be discharge and furnished an under other than honorable conditions certificate. 11. On 1 July 1988 the approval authority approved the board’s recommendation. On 8 July 1988, the applicant was discharge accordingly. Her service was characterized as UOTHC for misconduct. Her DD 214 shows she completed 10 years, 8 months and 2 days of total active service of which 4 years, 11 months and 20 days were Foreign Service, and she was awarded or authorized: * Good Conduct Medal (3rd Award) * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon. 12. On 4 March 2005, the applicant submitted a request for discharge upgrade to the Army Board of Correction of Military Records (ABCMR). The board voted to deny the request stating that the type of discharge directed and the reasons thereof were appropriate considering all the facts of the case. 13. On 18 October 2010, the applicant submitted docket number AR20100014911, a reconsidering to ABCMR. The Case Management Division of ABCMR notified the applicant that her request for reconsideration was not received within one year of ABCMR’s original decision and as a result the request is returned without action. 14. Army Regulation 635-200, Chapter 14 states 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 UOTHC discharge 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation; paragraph 14-12b provides for the separation when there is a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline and paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier 15. The applicant states that she received a UOTHC after years of faithful service to her country. Her records shows that she completed 10 years, 8 months, and 2 days of total federal service. The applicant further states that her intent was to retire from the Army. What she thought was recreational marijuana use made her realize that she has single handedly destroyed her career. Since she has been discharged she states that she has done continuous self-improvement through spiritual and academic achievements. The applicant provided letters of support that speak about her resiliency, high character and integrity. 16. Her record shows she had over 10 years of service when she was charged and separated for wrongful use of marijuana. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief and amend ABCMR's decision in Docket Number AR20040002984 on 24 February 2005. 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 found that the discharge characterization of the applicant for marijuana use was too harsh in light of current more liberal views of marijuana use, that the applicant had served honorably for nearly 10 years until her positive urinalysis, there was no evidence of rehabilitative efforts on the part of the unit, the offense occurred over 30 years ago, and there is evidence of applicant remorse and post-service honorable achievements. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief and amend ABCMR's decision in Docket Number AR20040002984 on 24 February 2005. 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 the following amendments: • Character of Service to "Honorable" 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, U.S. Code, 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. 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. 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. 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 UOTHC discharge 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. d. Paragraph 14-12b provides for the separation when there is a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. e. Paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier 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//