IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20190008288 APPLICANT REQUESTS: His 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 Under the Provisions of Title 10, U.S. Code, Section 1552), dated 21 February 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 September 1983 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 coerced and lied to, and then discharged from the military. His character of service has made it difficult for him to find work, and has greatly affected his quality of life. 3. The applicant enlisted in the Regular Army on 3 August 1981. 4. Court-martial charges were preferred against the applicant on 5 August 1983 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with possession of marijuana in the hashish form and distribution of marijuana, on or about 9 June 1983. 5. The applicant consulted with legal counsel on or about 15 August 1983. 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 elected to submit a statement in his own behalf; wherein, he stated he had never been involved with drugs before this incident. He further stated his inability to understand English had prohibited him from being an effective Soldier. 6. The separation authority approved the applicant's request for discharge on 29 August 1983, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 7. The applicant was discharged on 16 September 1983. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, and his service was characterized as UOTHC. 8. 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. 9. 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, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board noted the facts presented above. 2. The Board noted that he had legal counsel, that he acknowledged by his initials that his rights were explained to him by legal counsel and that he understood them; that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial; that he acknowledged his understanding that by requesting discharge, that 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, and that he could receive a discharge under other than honorable conditions. He did submit a statement submit a statement in his own behalf which was considered by the separation authority. 3. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency, and found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 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. 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) AR20190008288 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008288 5 ABCMR Record of Proceedings (cont) AR20190008288 4