ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: . BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20190004516 APPLICANT REQUESTS: In effect, his under other than honorable condition (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable 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), with self-authored statement * Certificates of Achievement and Certificates of Training * Letters of Appreciation and Letters of Commendation * Third party character statements 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 suffered personal and emotional issues after witnessing and observing situations while in Grenada during Operation Urgent Fury. In effect, he states: * he believes the majority of his emotional issues were from events he went through while deployed to Grenada * these issues are what played a significant role in his marriage which lead to his divorce * he witnessed several things that remain with him to this day * he witnessed several dead bodies buried in shallow graves being dug up by wild hogs; those images still haunt him * he was shot at several times and he always wondered if he would be next and if he would be buried beside them in a shallow grave * the image of those men and the thought of them and their families still haunts him emotionally today * he figured he could handle it because he was a paratrooper in the 82nd Airborne and considered himself hardcore; he thought he could get through it on his own * he realizes he need help but he cannot get benefits with a UOTHC * he doesn’t deny smoking marijuana, which is now legal; he used it to help him distract his thoughts * he should have sought help earlier * up until the time he smoked marijuana, he had been an exceptional Soldier * he took pride in the work he did, the service he provided, he also felt he was an above average and dedicated Soldier * he is seeking help from the Department of Veterans Affairs (VA) and needs his discharge to be upgraded to get the proper care he needs 3. The applicant enlisted in the Regular Army on 27 April 1982. He completed initial entry training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman). 4. The applicant attained the rank/grade of sergeant/E-5 and was awarded the Army Good Conduct Medal (1st Award) and the Army Achievement Medal for meritorious achievement while deployed to Grenada during the period 24 October 1983 through 27 October 1983. 5. The applicant accepted nonjudicial punishment (NJP) on 9 December 1985, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using a controlled substance, as indicated by a positive screening result from a urine sample he submitted during a 100 percent unit urinalysis test. 6. The applicant's immediate commander notified the applicant of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for his use of marijuana as a noncommissioned officer. 7. The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct. He waived further representation by counsel and consideration of his case by, and personal appearance before, a board of officers. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He acknowledged his understanding that if he received a character of service of less than honorable, he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge. However, he realized that an act of consideration by either board did not imply his discharge would be upgraded. He elected to submit a statement in his own behalf, wherein he noted: * he fully understood and would like to rectify his error in judgement * he was not a habitual user * he has never been in possession of said drug while stationed at Fort Wainwright, Alaska * letters of endorsements show that in regards to mission or duty he is regarded as above average soldier * the error he made was due to poor judgment and an isolated incident * he has always completed his mission, proficiently and in a professional manner * he asked for retention in the service * he understood that the type of discharge can affect his future 8. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of abuse of illegal drugs. Consistent with chain of command recommendations, the separation authority approved the applicant's discharge on 18 March 1986, under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed that he receive a UOTHC discharge. 9. The applicant was discharged accordingly on 7 April 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the characterization of his service as UOTHC. 10. The applicant provides third party character statements from fellow comrades in arms that served with him while in the military, certificates of achievements, certificates of training, letters of commendation, letters of appreciations, and an Army Achievement Medal Certificate. These documents show: a. He was an exceptional Soldier, he was willing to get along with other, get the job done, work with determination, very knowledgeable of his job, and without exception he demonstrated a hearty dedication to his career. b. The applicant’s certificate of training shows that he was technically and tactfully proficient in his job, and he completed his courses with determination. c. The applicant provided letters of commendations, and letters of appreciation, show that that he received acknowledgement of his hard work from his superiors that he was appreciated for his efforts, his superb performance, and his high level of standards d. The applicant was awarded an Army Achievement Medal for his participation in support of 82nd Airborne Division’s deployment to the country of Grenada. He also received several certificates of achievement that show he scored 300 on his physical fitness test. 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 record of service, promotions and awards, the nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found in-service mitigating factors in the records to include his deployment, letters of support, awards and letters of commendation and his personal statement prior to separation. The Board found the applicant did not provide evidence of post-service achievements or post-service 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 too harsh and an upgrade was appropriate. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends 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 7 April 1986, to reflect in item 24 (Character of Service): “General, under honorable conditions” vice “Under other than honorable conditions.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his 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. Paragraph 3-7a states 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions 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 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. 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. ABCMR Record of Proceedings (cont) AR20190004516 3 1