BOARD DATE: 22 October 2019 DOCKET NUMBER: AR20190003731 APPLICANT REQUESTS: In effect, an upgrade of the service characterization associated with his U.S. Army Reserve (USAR) discharge, from under other than honorable conditions (UOTHC) to something more favorable. 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 5 February 2019 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 was dishonorably discharged in 1995, for testing positive for marijuana during a urinalysis test. With laws changing the way they are and marijuana becoming legal and more acceptable, he should be cleared of a dishonorable discharge. 3. The applicant enlisted in the USAR on 18 February 1994. He entered active duty on 8 June 1994 for the purpose of completing his initial active duty for training. Upon his completion of military occupational specialty (MOS) training, he was awarded an MOS and was released from active duty on 4 August 1994 to the control of the USAR. 4. An undated DA Form 4856 (General Counseling Form) shows the applicant was counseled for testing positive for marijuana on 12 November 1994. 5. The applicant's commander notified the applicant via certified mail, dated 6 June 1995 that he was initiating actions to separate him from service under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), Chapter 7, for misconduct. The specific reason cited was the applicant’s positive drug result following a recent unit urinalysis. 6. The applicant signed for the notification letter with supporting documents via return receipt, on 14 July 1995. However, he did not reply or submit a statement in his own behalf. 7. The applicant's commander formally recommended the applicant's separation from service on 23 July 1995, under the provisions of Army Regulation 135-178, Chapter 7. 8. A DA Form 8028-R (USAR Bar to Reenlistment Certificate), dated 12 August 1995, shows the applicant was barred from reenlistment due to misconduct - abuse of illegal drugs. 9. The separation authority approved the recommended discharge on 9 March 1996 and directed the applicant be reduced to the lowest enlisted grade and discharged with his service characterized as UOTHC. 10. Orders 118-046, issued by Headquarters, U.S. Army 90th Regional Support Command, North Little Rock, Arkansas on 27 April 1996, reduced the applicant to private/E-1 and discharged him from the USAR effective 27 April 1996. His service was characterized as UOTHC. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his enlistment at age 17, his record of service, the completion of MOS training and return to his USAR, the frequency and nature of his misconduct, the Bar to Reenlistment, the separation packet sent to him by mail, the character of service recommendation of his immediate commander and the reason for his separation. The Board found no evidence of any other misconduct and determined that the character of service he received was too harsh. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be upgraded as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. 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. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Headquarters, United States Army 90th Regional Support Command ORDERS 118-046 dated 27 April 1996 to reflect in Type of Discharge – “Under Honorable Conditions (General)” vice Under other than honorable conditions. 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 135-178 sets forth the basic authority for the separation of enlisted Reserve Component personnel. a. Paragraph 2-9a provides that an honorable characterization of service is appropriate when the quality of the Soldier'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 2-9b provides that a general (under honorable conditions) characterization of service is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. c. Paragraph 2-9c provides that service may be characterized as UOTHC when discharge is for misconduct, fraudulent entry, unsatisfactory participation, or security reasons. d. Chapter 7 of this regulation establishes policy and prescribes procedures for separating enlisted members of the USAR for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction 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 UOTHC is normally considered appropriate. 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) AR20190003731 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190003731 4 ABCMR Record of Proceedings (cont) AR20190003731 3