IN THE CASE OF: BOARD DATE: 14 May 2021 DOCKET NUMBER: AR20210006910 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. On 30 September 1996, the applicant enlisted in the Regular Army (RA) for 3 years. He held military occupational specialty (MOS) 88H (Cargo Specialist). He was assigned to Fort Eustis, VA, on 11 March 1997, the highest rank he held was private/E-2. 3. A Forensic Toxicology Drug Testing Laboratory Report shows on 12 May 1998 the applicant’s urine specimen tested positive for tetrahydrocannabinol (a psychoactive compound in marijuana). 4. Four General Counseling Forms and a sworn statement show the applicant was counseled between March and June 1998 for/being: * AWOL 12 to 17 March 1998 (Not recorded on charge sheet or DD Form 214) * AWOL from 17 to 22 March 1998 * AWOL from 9 April to 13 April 1998 * AWOL from 23 to 24 June 1998 * Positive drug test results * Disrespectful toward a noncommissioned officer (NCO) 5. The complete facts and circumstances surrounding the applicant’s discharge process are not available for review with this case. a. A charge sheet shows the applicant was charged with for/being: * AWOL from 17 to 22 March 1998 * AWOL from 9 April to 13 April 1998 * AWOL from 23 to 24 June 1998 * Disrespectful in deportment toward an NCO on 17 April 1998 * Positive drug test results * Between on or about 15 April and 15 May 1998, wrongfully using marijuana b. A voluntary request for discharge, dated 14 July 1998, shows the applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). 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 AR 635-200, chapter 10. He signed a request for discharge in lieu of trial by court-martial and there are no statements that were submitted in his own behalf available for review with this case. c. On 14 July 1998, the applicant’s unit commander recommended approval of his request with the issuance of an UOTHC discharge. d. On 15 July 1998, the appropriate authority directed the applicant’s reduction to the lowest enlisted grade, approved his request for discharge in lieu of trial by court- martial, and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate. e. The DD Form 214 that was prepared, on 28 July 1998, at the time of separation shows he was discharged in pay grade E-1. His awards are listed as the National Defense Service Medal, Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge Rifle (M-16) and Grenade Bar. He completed 1 year, 9 months, and 21 days of active military service. His DD Form 214 also shows in: * Character of Service, “Under Other Than Honorable Conditions” * Separation Authority, “AR 635-200, Chap 10” * Narrative Reason for Separation, “In Lieu of Trial By Court-Martial” * Dates of Time Lost During This Period, “19980317-19980322, 19980409- 19980413, and 19980623-19980624” 6. AR 635-200, Chapter 10, provides for voluntary discharge requests in-lieu of trial by court martial. In doing so, the applicant would have waived his opportunity to appear before a court-martial. A UOTHC discharge is authorized and normally considered appropriate; however, 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. 7. In reaching its determination, the Board can consider the applicant's petition and service record in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. 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. AR 635-200, in effect at the time, 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, an UOTHC discharge was normally issued to an individual who was discharged for the good of the service in lieu of trial by court-martial. 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 UOTHC 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 discharge 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. 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) AR20210006910 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006910 5 ABCMR Record of Proceedings (cont) AR20210006910 4