ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS

BOARD DATE:	8 October 2019

DOCKET NUMBER: AR20190010363



APPLICANT REQUESTS: The applicant requests an upgrade of his under other than 
honorable conditions (UOTHC) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   *	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Department of Veterans Affairs (VA) document/statement
   *	Georgia Superior Court documents 
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 (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:

   a.	In response to Article 112a of the Uniformed Code of Military Justice (UCMJ), 
wrongful use, possession, etc., of controlled substances, Specification 1: wrongful 
possession of 15 grams of marijuana with intent to distribute on 15 April 1999, this 
charge was later reduced to simple possession without intent and classified also as a 
misdemeanor. Also the two other specifications listed use and also possession of 
marijuana also determined that he had currently failed an urinalysis on 1 May 1999, and 
later found with it in his possession.

   b.	He never denied the fact that he used marijuana but he was never informed he 
could salvage whatever was left of his military career at that time. He was completely 
under the influence of the drug and he felt completely alone. He wanted help, but never 
received any alternative methods of getting the help he needed. He received due 
punishment under UCMJ but nothing more.  He accepted the trial by court-martial as 
the easy way out not understanding what he actually signed up for.  He felt at that time
   



he was actually going to prison for the rest of his life because he never really been in 
any trouble before.

   c.	He never had a bad counseling statement or anything of that nature his whole 
Army career up to the that point. He became addicted to marijuana.  If awarded a 
second chance and educated on the positive of being rehabilitated and continuing in his 
career he would have successfully gained lifetime achievements to count, and would 
have retired a valuable asset to the Army. Now after years of being away and accepting 
that he perhaps has screwed up furthering in any other relationship with the Army or 
any other branch. He still finds that, he has not totally found closure in this because he 
wasn't assessed properly before facing the judgement he received.

   d.	He now believes he has found error in this because he is listed as being felonious 
which he is not. At this point he is asking for another complete review of his discharge, 
change of his classification of his discharge and to remove all bars for reenlistment in 
the Reserves, Army National Guard, Coast Guard, and etc., as well as to receive any 
other benefits that he may qualify for.

   e.	He has enclosed a copy of the disposal of the charges from the Superior Court of 
Richmond County, Augusta, Georgia, request and order of Nolle Prosequi.  This in 
terms basically says that the said court will no longer prosecute or a variation on the 
same.  It amounts to a dismissal of charges by the prosecution.

3.	On 30 June 1994, the applicant enlisted in the Regular Army for a period of 4 years. 
He immediately reenlisted for 3 more years on 23 September 1997.

4.	His service records contain sworn statements that show, the applicant admitted to:

*	having plans to purchase marijuana (marijuana)
*	paying $45.00 dollars for marijuana
*	his vehicle being searched and marijuana was found
*	planning on bringing marijuana to Fort Gordon, GA
*	knowing that possessing, purchasing, and smoking marijuana was illegal
*	smoking marijuana with some of his family

5.	A final Criminal Investigation Command (CID) Report of Investigation completed on 
6 May 1999, established probable cause to believe the applicant committed the 
offenses of wrongful use and possession of marijuana with the intent to distribute, when 
he was arrested by the Richmond County Sheriffs Department (RCSD), Augusta, GA, 
and was found in possession of 9 separate cellophane bags of Marijuana.

6.	On 19 May 1999, a Reporting of Urinalysis Testing Results show that, the applicant 
tested positive for marijuana.




7.	On 27 May 1999, the applicant voluntarily requested to be discharged in-lieu of trial 
by court-martial, under the provisions of chapter 10, Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), because the following charges of 
wrongful possession of marijuana on two (2) separate occasions, intent to distribute 
marijuana, and wrongful use of marijuana had been preferred against him.

   a.	He consulted with legal counsel and was advised of the basis for his 
contemplated trial by courts-martial, its effects, and of the procedures and rights 
available to him.

b.	The applicant acknowledged that:

*	he was fully advised by legal counsel of the nature of his rights under the 
Uniform Code of Military Justice
*	under no circumstances did he desire further rehabilitation, and he did not 
have a desire to perform further military service
*	he did not desire to submit statements in his own behalf, and he understood if 
his request for discharge was accepted, he may be discharged under 
conditions other than honorable

   c.	His chain of command recommended approval of his discharge request with an 
UOTHC Discharge Certificate.

   d.	The separation authority approved the applicant’s request for discharge in-lieu of 
trial by court-martial and directed he be issued and “Other Than Honorable Discharge”.

8.	On 8 June 1999, the applicant was discharged accordingly. He completed 4 years, 
11 months, and 9 days of net active service. He was awarded or authorized the Army 
Achievement Medal (2nd award) and the Army Good Conduct Medal.	The DD Form 
214 he was issued lists a reentry code of 3 (not fully qualified for reentry or continuous 
service at time of separation).

9.	The applicant provided Georgia Superior Court documents that show, in pertinent 
part, the offense of possessing marijuana with the intent to distribute was dismissed and 
would not be pursued. Nevertheless, the evidence of record shows he clearly admitted 
to purchasing, possessing, and using marijuana. Furthermore, court-martial charges 
were preferred against the applicant for the offenses and he voluntarily requested to be 
discharged in-lieu of trial by court-martial. The evidence of record also shows he 
declined rehabilitation, and was given a reentry code that requires a waiver to be 
granted in order to reenter the military.  The applicant should seek guidance from 
military recruiters in regards to reentering the military.




10.	The record contains no indication of procedural or other errors that would tend to 
have jeopardized the applicant’s rights.

11.	Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) 
provides that, Reentry Eligibility (RE) code 3 applies to a person who is not considered 
fully qualified for reentry or continuous service at time of separation, but disqualification 
can be waived.  A person is ineligible unless a waiver is granted.

12.	Army Regulation 635-200, chapter 10 stated that, a member who was charged with 
an offense or offenses for which the authorized punishment included a punitive 
discharge could submit a request for discharge in lieu of trial by court-martial. The 
request could be submitted at any time after charges had been preferred and must have 
included the individual's admission of guilt. Although an honorable or general discharge 
was authorized, a discharge under other than honorable conditions was normally issued 
to an individual who was discharged for the good of the service.

13.	In regards to the applicant requesting an upgrade so that he may receive benefits. 
The ABCMR is not authorized to grant requests for upgrade of discharges solely for the 
purpose of making the applicant eligible for veterans' benefits; however, in reaching its 
determination, the Board can consider the applicant's petition, his service record, and 
his statements in light of the published 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 and 
length of service, the nature of his misconduct, the CID report and court-martial 
charges, the reason for his separation and the reenlistment code on his DD Form 214. 
The Board considered outcome of the civil court proceedings to include a dissmissal of 
some charges, the sworn statements in the record as well as the applicant's two AAMs 
and AGCM.	Based on a preponderance of evidence, the Board determined that the 
character of service the applicant received upon separation was too harsh and required 
correction. The Board concurred with the corrections stated in the Administrative 
Note(s) below.
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:
The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief. As a result, in addition to the corrections stated in the 
Administrative Note(s) that follow, the Board recommends that all Department of the 
Army records of the individual concerned be corrected by amending item 24 
(Character of Service) in the DD Form 214 for the period of service ending 8 June 
1999 as follows:  "Under Honorable Conditions (Ge
honorable conditions."




 X	

CHAIRPERSON

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
8 June 1999, is missing important entries that may affect his eligibility for post-service 
benefits.  As a result, amend the DD Form 214 by adding the following entries to
item 18 (Remarks):

*	IMMEDIATE REENLISTMENTS THIS PERIOD FROM 940630 UNTIL 970922
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 940630 UNTIL 970922




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 (Personnel Separations – Enlisted Personnel) set forth the 
basic authority for the administrative separation of enlisted personnel.

   a.	Chapter 10 stated a member who was charged with an offense or offenses for 
which the authorized punishment included a punitive discharge could submit a request 
for discharge for the good of the service in lieu of trial by court-martial. The request 
could be submitted at any time after charges had been preferred and must have 
included the individual's admission of guilt. Although an honorable or general discharge 
was authorized, a discharge under other than honorable conditions was normally issued 
to an individual who was discharged for the good of the service.

   b.	An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law. The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.

   c.	A general discharge was a separation from the Army under honorable conditions. 
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.

   d.	An under other than honorable conditions discharge is an administrative 
separation from the service under conditions other than honorable. It may be issued for 
misconduct. 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.

3.	Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) 
prescribes eligibility criteria governing the enlistment of persons, with or without prior 
service (PS), into the Regular Army and the U.S. Army Reserve, this regulation provides 
that, Reentry Eligibility (RE) code 3 applies to a person who is not considered fully 
qualified for reentry or continuous service at time of separation, but disqualification can 
be waived.  A person is ineligible unless a waiver is granted.




4.	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.

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