ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  13 August 2019

	DOCKET NUMBER:  AR20190004391


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an under honorable conditions (general) 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 27 December 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, in effect, he was arrested in 1991, for the personal use and 
possession of marijuana, which resulted in a court-martial, and an UOTHC discharge.  
He had no other convictions while in the military.  He now feels, that he was treated 
unfairly, and that an UOTHC discharge imposed cruel and unusual punishment, for a 
misdemeanor possession of a marijuana conviction.

3.  The applicant enlisted in the Regular Army on 12 September 1990.  

4.  Court-martial charges were preferred against the applicant for violations of the 
Uniform Code of Military Justice (UCMJ); the relevant DD Form 458 (Charge Sheet) 
shows he was charged with the following offenses:

*	one specification of wrongfully possessing approximately nine grams of 
marijuana in the hashish form, on or about 1 June 1991
*	one specification of wrongfully using marijuana in the hashish form, between on 
or about 18 May 1991 and on or about 31 May 1991
5.  The applicant consulted with legal counsel on or about 12 August 1991.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an UOTHC discharge, and the procedures and rights that were available to him.

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service.  In his request for 
discharge, he acknowledged his understanding that by requesting discharge, he was 
admitting guilt to the charge against him, or of a lesser included offense that also 
authorized the imposition of a bad conduct or dishonorable discharge.  He further 
acknowledged he understood that if his discharge request was approved he could be 
deprived of many or all Army benefits, he could be ineligible for many or all benefits 
administered by the Veterans Administration, and he could be deprived of his rights and 
benefits as a veteran under both Federal and State laws.

	c.  He was further advised that there is no automatic upgrading nor review by any 
Government agency of a less than honorable discharge and that he must apply to the
Army Discharge Review Board or the ABCMR if he wished for a review of his discharge.  
He realized that the act of consideration by either board does not imply that his 
discharge would be upgraded.

	d.  His request for discharge did not indicate his election to submit a statement in his 
own behalf.

6.  The applicant’s immediate commander recommended disapproval of his discharge 
request, in lieu of trial by court-martial, and recommended he receive an UOTHC 
discharge.  

7.  The applicant’s Battalion and Brigade commanders both recommended approval of 
his request for discharge, under the provisions of Army Regulation 635-200, 
Chapter 10, with a UOTHC discharge.

8.  The separation authority approved the applicant's request for discharge on 
26 August 1991, under the provisions of Army Regulation 635-200, Chapter 10, for the 
good of the service and directed his reduction to the lowest enlisted grade and the 
issuance of a UOTHC discharge.

9.  The applicant was discharged on 10 September 1991, under the provisions of Army 
Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-
martial.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he 
was issued shows his service was characterized as UOTHC.  He was credited with 
completing 11 months and 29 days of net active service this period.

10.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

11.  The Board should consider the applicant's request in accordance with the published 
equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

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 record of service, the 
frequency and nature of his misconduct, the reason for his separation and whether to 
apply clemency.  The Board found insufficient evidence of in-service mitigating factors 
and the applicant provided no evidence of post-service achievements or letters of 
reference in support of a clemency determination.  Based on a preponderance of 
evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust.



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, 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.  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 10 of that regulation provides, in pertinent part, that a member who has 
committed an offense or offenses for which the authorized punishment includes a 
punitive discharge may, submit a request for discharge for the good of the service in lieu 
of trial by court-martial.  The request may be submitted at any time after charges have 
been preferred and must include the individual's admission of guilt.  Although an 
honorable or general discharge is authorized, a discharge under other than honorable 
conditions is normally considered appropriate.

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.  

	a.  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.  

	b.  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.

	c.  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)	 AR20190004391

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