IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190008829 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement * Seven Letters of Support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 and his six siblings were raised by both parents. He joined the military at the age of 17 through the delayed entry program; he turned 18 in the military. He joined because he wanted to serve his country and better himself. During his initial training he was made squad leader and carried the guide on long runs. He was also a clerk for his First Sergeant. He was motivated, worked hard at his job. a. He was young and made a wrong choice one day. He saw others selling marijuana and one day he was approached by a man and sold him marijuana for $10. He was not a seller. He was a good Soldier until that incident. b. He came home got a job, got married and had four sons. He and his wife went to college while owning his own business as well as working other jobs. He serves in his church as well as coached his sons and other children in his community for recreational basketball and football. If his discharge is upgraded it would give him confirmation in life, the mistakes you make in the past can be forgiven. 3. On 28 June 1978, the applicant enlisted in the Regular Army for three years after serving nine months and three days in the Army Reserves at the age of 17. His records show he completed initial entry training and on 12 June 1979 he reported to his first duty assignment at Fort Lewis, WA as a 24G, (HAWK Information Coordination Central Mechanic). 4. On 25 April 1980, the applicant was charged for transferring, selling, and having in his possession marijuana on 15 March 1980 and again on 19 March 1980. His intermediate chain of command recommended he be tried by special courts-martial. 5. On 13 May 1980, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He signed a request for discharge for the Good of the Service and indicated he would not submit statements in his own behalf. 6. On 23 May 1980, the appropriate separation authority approved the applicant’s request and directed he be furnished an UOTHC discharge certificate. 7. On 5 June 1980, he was discharged accordingly; his DD Form 214 shows he completed 1 year, 11 months, and 8 days. 8. The applicant provides seven letters of support sharing in part how the applicant is a respected member in his community. He coaches and mentors the youth within the community and is an active member in the church. 9. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 10. The applicant states he was young and made a wrong choice by following others and sold marijuana. He now has a family and is an active member in his church and community and would like his discharge to be considered for an upgrade. His records show he was charged for possession of marijuana and voluntarily requested to be discharge in lieu of trial by court martial. The highest rank he held was Private First Class (PFC). In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. 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, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation for his misconduct. The Board considered the applicant’s statement regarding his post-service achievements and the letters of reference and found them sufficient to support a clemency determination. 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 partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :XXX :XXX :XXX 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 5 June 1980 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 an upgrade 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, 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 635-200 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs 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) AR20190008829 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008829 5 ABCMR Record of Proceedings (cont) AR20190008829 4