BOARD DATE: 10 February 2020 DOCKET NUMBER: AR20190011966 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 293 (Application for the Review of Discharge From the Armed Forces of the United States), dated 8 August 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 he would like an upgrade to see if he can receive benefits for service-connected disabilities. 3. The applicant enlisted in the Regular Army on 23 June 1981. 4. A DA Form 3822-R (Report of Mental Status Evaluation), dated 14 September 1984, indicates the applicant was found to be mentally capable to understand and participate in proceedings deemed necessary by his command. 5. The applicant was notified by his immediate commander on 24 September 1984 that he was being recommended for separation from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct. The applicant acknowledged receipt on the same date. 6. The applicant’s immediate commander formally recommended the applicant’s separation from service on 24 September 1984, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. The specific reason stated was the applicant’s admitted use of marijuana on several occasions and possession of marijuana bearing substances. 7. The applicant consulted with counsel on 25 September 1984 and waived his right to consideration of his case by a board of officers and personal appearance before a board of officers. He elected to submit a statement in his own behalf, which was submitted at a later date. 8. The applicant accepted non-judicial punishment on 1 October 1984, under the provisions of Article 15 of the Uniform Code of Military Justice, for wrongful use of marijuana on or about 8 September, 9 September, and 11 September 1984. 9. In a letter dated 12 October 1984, the applicant acknowledged that what he did was wrong; however, he noted that this was his first offense in three years and three months. 10. The separation authority approved the recommended discharge on 24 October 1984 and directed the issuance of an UOTHC discharge with reduction to the lowest enlisted grade. 11. The applicant was discharged on 6 November 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12d, by reason of misconduct – drug abuse. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 12. The Board should consider the applicant's overall record and the statement he provides 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, the frequency and nature of his misconduct, his separation packet and the reason for his separation. The Board found the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. The Board found that considering the applicant’s service and the nature of the misconduct the applicant’s separation characterization was too harsh. 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 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 the DD form 214 for the period of service ending 6 November 1984 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” 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 upgrade of the applicant’s 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, 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. Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave. 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 discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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) AR20190011966 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011966 4 ABCMR Record of Proceedings (cont) AR20190011966 3