IN THE CASE OF: BOARD DATE: 14 September 2022 DOCKET NUMBER: AR20210016073 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release of Discharge from Active Duty), 22 August 1981 * DA Form 2-1 (Personnel Qualification Record – Part II), page 3 * DD Form 214 (Certificate of Release of Discharge from Active Duty), 25 April 1986 * Supporting statement from the applicant’s brother, 2 September 2021 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, 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, in effect, he engaged in minor misconduct for testing positive for marijuana and had no disciplinary action taken against him for his misconduct while in service. His goal was to make the military a career, as five of his brothers had while serving in the Air Force and Army. The applicant states he has since led an exemplary life without arrests or any other disciplinary actions and has completed multiple college level courses since he was separated from the military. He states he was erroneously advised that his discharge would automatically change to honorable after a period of 5 years. The applicant claims he discovered this error recently when he attempted to purchase a home. 3. The applicant enlisted in the Regular Army on 18 January 1983 after previously serving in the United States Army Reserves. 4. The applicant’s record contains two DA Forms 4187, which show the below changes to his duty status: * Ordinary Leave to Absent Without Leave (AWOL) – 2 September 1984 * AWOL to Present for Duty – 6 September 1984 5. The applicant accepted field grade Nonjudicial Punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 2 September 1984 to on or about 6 September 1984. His punishment consisted of forfeiture of $100.00 for two months and reductions to the grade of Private 2 PV2). The reduction in grade was suspended for 60 days and remitted if not vacated before 6 November 1984. 6. On 22 May 1985, the applicant’s company commander informed him he was considering whether he should receive NJP under the provisions of Article 15, UCMJ for failing to report to his appointed place of duty on or about 22 April 1985. a. The commanding officer initiated NJP proceedings on 30 May1985. The punishment consisted of a reduction in rank/grade from private first class (PFC)/E-3 to (PV2)/E-2, forfeiture of $162.00, 14 days extra duty, and 14 days restriction. b. The applicant appealed the punishment in a letter dated 5 June 1985 stating, in effect, that he had no prior punishment and a reduction in rank or forfeiture of pay would result in a financial burden. c. The commander granted the applicant’s appeal on 12 June 1985. The commander modified the applicant’s punishment to reflect that the reduction to the rank of PV2 will be suspended and to be remitted if not vacated before 9 December 1985. d. On 5 August 1985, the commander vacated the suspension of punishment, specifically the reduction to the rank of PV2, because the applicant wrongfully used marijuana on or about 9 June to 9 July 1985. 7. The applicant accepted field grade NJP under the provisions of Article 15, UCMJ on 7 August 1985 for the wrongful use of marijuana on or about 9 June to 9 July 1985. His punishment consisted of reduction to the grade of E-1, forfeiture of $310.00 for 2 months, 45 days extra duty, and restriction for 45 days. 8. The applicant accepted field grade NJP under the provisions of Article 15, UCMJ on 22 October 1985 for the wrongful use of marijuana sometime prior to 5 September 1985. His punishment consisted of forfeiture of $310.00 for 2 months, 45 days extra duty, and 45 days restriction. 9. The applicant underwent a medical examination on 12 September 1985, for the purpose of separation. The doctor did not note any physical defects and found the applicant to be qualified for Administrative Separation. 10. The applicant underwent a mental status evaluation on 15 September 1985. The doctor did not note any mental defects and found he had the mental capacity to participate in his separation board proceedings. 11. The applicant’s Commanding Officer notified him on 28 October 1985 that he was initiating action to discharge him from the Army under the provisions of AR 635-200 paragraph 14-12(c). The applicant acknowledged receipt of the notification, indicated he desired military legal counsel for consultation, and requested to have his case considered by an administration separation board. 12. On 29 October 1985, the applicant acknowledged he was advised by his counseling counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14, and its effects; of the rights available to him; and the effect of any action he took in waiving his rights. He understood that if he had less than 6 years of total active and Reserve military service at the time of separation and was being considered for separation for reason of misconduct under AR 635-200, Chapter 14, he was not entitled to have his case heard by an administrative separation board unless he was being considered for a discharge under other than honorable conditions. a. He requested consideration of his case by an administrative separation Board, with a personal appearance, and representation by military counsel. He also elected not to submit statements in his own behalf. b. He understood that his willful failure to appear before the administrative separation board by absenting himself without leave would constitute a waiver of his rights to a personal appearance before the board. c. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge certificate/character of service which is less than honorable, He may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he also realized that an act of consideration by either board does not imply that his discharge would be upgraded. 13. The applicant’s commanding officer submitted a formal recommendation for discharge on 18 November 1985. The recommendation included evidence of the applicant’s recurring article 15 punishments and letters from his chain of command recommending he be discharged from the Regular Army. 14. The applicant was notified on 5 February 1986 to appear before a board of officers to determine if he should be discharged from the Regular Army because of misconduct. The applicant was given the opportunity to seek legal consultation and request representation by military counsel. 15. An administration separation board convened on 27 February 1986. The Board recommended the applicant be eliminated from service under the provisions of AR 635-200, paragraph 14-12(c) with an Under Other Than Honorable Discharge Certificate. 16. The discharge approval authority approved the recommendation for the applicant’s elimination from the Regular Army, under provisions of AR 635-200, paragraph 14-12(c), on 26 March 1986. 17. The applicant’s DD Form 214 shows he was discharged on 25 April 1986, under the provisions of AR 635-200, paragraph 14-12(c) with an under other than honorable conditions characterization of service for misconduct - abuse of illegal drugs. The applicant’s DD Form 214 shows lost time from 2 September 1984 to 5 September 1984. 18. The applicant provided argument or evidence that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board noted, the applicant provided insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. 2. The Board found the applicant’s service record exhibits numerous instances of misconduct during his enlistment period The Board determined there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b stated 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. b. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) Paragraph 14-3 states a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (2) Section III (Acts or Patterns of Misconduct), paragraph 14-12c, states Soldiers are subject to action per this section for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Courts-Martial. An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. 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) AR20210016073 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1