ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  16 August 2019

	DOCKET NUMBER:  AR20190008541


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 21 March 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 after seven years of service he tested positive for marijuana 
which has been decriminalized in many places.  His usage was in his off duty time.

3.  The applicant enlisted in the Regular Army on 1 November 1983 with an immediate 
reenlistment on 11 May 1987.

4.  The applicant accepted nonjudicial punishment on 26 January 1990, under Article 15 
of the Uniform Code of Military Justice (UCMJ), for use of a marijuana between on or 
about 10 December 1989 and or about 9 January 1990.

5.  Court-martial charges were preferred against the applicant on 22 March 1990 for 
violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge 
Sheet) shows he was charged with wrongful use of marijuana between on or about 
14 November and 14 December 1989 and between on or about 16 December 1989 and 
16 January 1990.

6.  The applicant consulted with legal counsel on 13 April 1990.

	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 under other than honorable conditions 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 or Active Duty Enlisted Administrative Separations), Chapter 10, for 
the good of the service – in lieu of trial by court-martial.  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 submitted a statement in his own behalf stating;

		1)  He was under a great deal of stress at the time of the offenses.  His wife's 
continuing illness, his parents' recent separation, and other family problems all played a 
large part in the offenses charged.

		2)  He was honest and admitted his guilt, both through this Chapter 10 request 
and through the article he wrote for the Fort Meade newspaper.  He wrote this article in 
an attempt to prevent others from making the same mistake he did.  This article is also 
one of the measures he has taken to rehabilitate himself.  In addition, he has also 
honorably served out the Article 15 punishment imposed for the first offense (illegal drug 
use) charged.

      3)  Throughout the past he has been well decorated and has performed his 
duties honorably.  He has been awarded the Army Commendation Medal, Army 
Achievement Medal, Good Conduct Medal, Keith L. Ware Awards for Journalism (two 
for sports writing, one for radio news/information series), and several letters of 
commendation.  He is a graduate of the Fort George G. Meade Non-Commissioned 
Officer Development Program.

7.  The separation authority approved the applicant's request for discharge on 20 April 
1990, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by 
court-martial, and directed that the applicant be reduced to the lowest enlisted grade 
with his service characterized as UOTHC.

8.  The applicant was discharged on 4 May 1990.  The DD Form 214 (Certificate of 
Release or Discharge from Active Duty) he was issued shows he was discharged under 
the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and 
his service characterization was UOTHC.  His DD Form 214 further shows he was 
credited with 6 years, 6 months, and 4 days of net active service.

9.  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.

10.  The Board should consider the applicant's statement and overall military service 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 and 
length of service, the frequency and nature of his misconduct, the reason for his 
separation and whether to apply clemency.  While the applicant provided no evidence of 
post-service achievements or letters of reference, the Board found mitigation in-service, 
based on his statement and his overall record of performance during his service and 
found that clemency was applicable in this case.    Based on a preponderance of 
evidence, the Board determined clemency was warranted and that the applicant’s 
character of service should be upgraded.

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:

In addition to the correction stated in the Administrative Note(s) that follow, 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 the applicant’s DD Form 214 for the 
period ending 4 May 1990 to show in item 24 (Character of Service) – “General, under 
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):

A review of the applicant's record shows his DD Form 214, for the period ending 4 May 
1990, is missing important entries that affect his eligibility for post-service benefits.  As a 
result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): 

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 831104 UNTIL 870510
?
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 Army Board for Correction of Military Records 
(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 635-5 (Personnel Separations – Separation Documents) prescribes 
the separation documents prepared for Soldiers upon retirement, discharge, or release 
from active military service or control of the Army.  It establishes the standardized policy 
for preparing and distributing the DD Form 214.  It states the DD Form 214 provides a 
brief, clear-cut record of active Army service at the time of release from active duty, 
retirement, or discharge.

	a.  Paragraph 1-4b(5) of the regulation in effect at the time stated that a 
DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate 
reenlistment in the Regular Army.

	b.  Paragraph 2-4h(18) of the regulation currently in effect states that item 18 
documents the remarks that are pertinent to the proper accounting of the separating 
Soldier's period of service.  Subparagraph (c) states that for enlisted Soldiers with more 
than one enlistment period during the time covered by the DD Form 214, enter 
"IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates.  For 
Soldiers who have previously reenlisted without being issued a DD Form 214 and who 
are later separated with any characterization of service except "honorable," enter 
"CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which 
DD Form 214 was not issued) UNTIL (date before commencement of current 
enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

	c.  Since 1 October 1979, military personnel discharged for the purpose of 
immediate reenlistment are no longer issued a separate DD Form 214.

3.  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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

   c.  Chapter 10 provides 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 UOTHC is normally considered appropriate.

4.  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.)	 AR20190008541
	
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