IN THE CASE OF: BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20190014142 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record). 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 prior to his discharge he started using marijuana and it took over much of his thought process. He has since changed his life and would like to have the opportunity to fix the things that he did in the past. 3. The applicant’s record is void of a separation packet. His record shows: a. On 1 February 1977, he enlisted in the Regular Army. On October at the age of, he reenlisted for a term of 6 years. After completing his initial entry training, he was assigned to Fort Ord, CA and on 18 April 1980, he was in route to his overseas assignment to Germany. b. He received an enlisted evaluation report for the period May 1981 through April 1982, which states: (1) He had no initiative as an noncommissioned officer (NCO) or in his job, He continually missed formations and other mandatory commitments. His job performance was so low that he could not complete or do an assigned job without direct supervision. He did not strive for self-improvement or in any way develop himself. He constantly had to be counseled on his military appearance and showed no sound judgement in his tasks. (2) He was an immature NCO who neither sought out opportunities for self- improvement, nor initiated action without one-on-one supervision. His personal behavior and attitude led to the point where he could not work with other Soldiers on the simplest task. He could not communicate effectively and took no pride in anything he did. He was lacking in military bearing and had to be corrected many times before he took action. He showed no sense of urgency, nor interest toward his duties and did nothing to improve this situation. c. He accepted nonjudicial punishment (NJP) on: * 14 May 1982 for failing to go at the time prescribed to his appointed place of duty * 2 June 1982 for being derelict in the performance of his duties of failing to sign over the Arms Room Keys and leaving them on the Charge of Quarters desk * 22 October 1982 for, on four occasions, failing to go at the time prescribed to his appointed place of duty * 1 December 1982 for, on two occasions, willfully disobeying a superior NCO d. The NJP, in which the applicant accepted on 1 December 1982, punishments consisted of reduction to Private E-1 and forfeiture of $128.00, both suspended until 1 March 1983, and extra duty for 14 days. On 7 February 1983, his suspension of the punishment to reduction to Private E-1, was vacated based on him wrongfully possessing and distributing marijuana in Fulda, Germany. e. He signed a medical examination for separation/retirement statement of option indicating he did not desire a separation medical examination. His record is void of both a separation medical examination and a mental status examination. f. On 28 March 1983, he was discharged under Army Regulation (AR) 635-200, Chapter 10, for the good of the service in lieu of court-martial. His service was characterized as UOTHC. He completed 6 years and 28 days net active service this period (3 years, 5 months, and 13 days since his reenlistment). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: He was awarded or authorized: * Aircraft Crewman Badge * Overseas Service Ribbon * Good Conduct Medal * M-16 Rifle Sharpshooter Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge 4. The applicant states prior to his discharge he started using marijuana and it took over much of his thought process. His record shows he reenlisted at the age of 20 years; he received a negative evaluation report; he accepted four NJPs; and the last offense committed by the applicant prior to his discharge was he wrongfully possessed and distributed marijuana. He completed 3 years, 5 months, and 13 days of his 6-year contractual obligation. a. Army regulations governing Army Drug and Alcohol Prevention and Control Program provides the objective of rehabilitation for military personnel was to restore identified individuals to effective duty and identify individuals who cannot be rehabilitated within the scope of this regulation. Commanders were to initiate separation for those members who failed to rehabilitate. Separation of soldiers under the provisions of Army Regulation 635-200, Chapter 9 were normally characterized as honorable or under honorable conditions (general). b. Chapter 9 prescribed the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the Army Drug and Alcohol Prevention and Control Program for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. c. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1969 (Revised) included a bad conduct or dishonorable discharge. According to the MCM, Article 134, UCMJ –– Drugs, Wrongful Possession or Transfer of Marijuana, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 5. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 requested discharge, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurred with the correction stated in the Administrative Note(s) below to add an entry for Continuous Honorable Service for the period prior to the applicant’s reenlistment. 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 item 18 (Remarks) of the DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 28 March 1983 as shown in the Administrative Note(s) that follow. 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 character of service the applicant received upon separation. 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 (Certificate of Release or Discharge from Active Duty), for the period ending 28 March 1983, 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 770201 UNTIL 791015" 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 600-85 (Alcohol and Drug Abuse Prevention and Control Program (ADAPCP)) governs the Army's ADAPCP, policies and responsibilities. It provides: a. When individuals are identified, voluntarily or involuntarily as possible alcohol or other drug abusers, the unit commander or designated representative will advise them of their rights, explain provisions of the limited use policy, interview and inform them of the evidence, give them an opportunity to provide additional evidence, including information on drug sources, if they desire. Such disclosure is strictly voluntary, collect any drugs or paraphernalia voluntarily relinquished and turn them over to the provost marshal and refer all suspected individuals identified, to include through urinalysis and blood alcohol test to the alcohol drug abuse prevention control program (ADAPCP). b. The initial screening interview will be accomplished by the ADAPCP staff. Limited use provisions are unchanged by the mandatory separation processing of drug abusers according to Army Regulations 635-100 and 635-200. If after the initial screening the commander believes a soldier would not respond to rehabilitation or based on the soldiers record does not have the potential for future service considered and processed for separation (other than chapter 9) according to Army Regulations 635-100 or 635- 200. c. The ADAPCP counselor will inform the soldier of the limited use policy and determine if a medical evaluation is required. A medical evaluation is required of illegal drug abusers for positive tests other than cannabinoids (THC). The soldier or commander may request a medical evaluation by a physician at time to determine the extent of alcohol or drug abuse by a soldier. Medical evaluations determine whether serious medical illness is indicated due to alcohol or drug abuse. d. As soon as possible after the ADAPCP initial screening is completed, the team, at a minimum, composed of the soldier, his commander/designee and the ADAPCP counselor will convene. The ADAPCP counselor will recommend the appropriate disposition of the referral. One of the following or a combination of the following will be recommended: * Unit counseling by commander/designated representative * Other action (for example, no referral to other agency) * No ADAPCP services required at the present time * Enrollment in an active rehabilitation program 3. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. 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. b. 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. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. Chapter 9 prescribed procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the Army Drug and Alcohol Prevention and Control Program for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Nothing in this chapter prevents separation of a Soldier who has been referred to such a program under any other provisions of this regulation. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. The service of Soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions unless the Soldier is in entry-level status and an uncharacterized description of service is required. However, an honorable discharge is required if restricted-use information was used. 4. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised) 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. According to the MCM, Article 134, UCMJ –– Drugs, Wrongful Possession or Transfer of Marijuana, included a dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014142 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1