IN THE CASE OF: BOARD DATE: 22 August 2022 DOCKET NUMBER: AR20220001583 APPLICANT’S REQUEST: An upgrade of his under other than honorable conditions (UOTHC) characterization of service to general or honorable. 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. The applicant states he was told his discharge would automatically be upgraded to honorable service within 6 months. But he did not follow-up. Now, he is older and wiser and would like to obtain Department of Veterans Affairs (VA) benefits. 3. On 19 August 1980, the applicant enlisted in the Regular Army for 3 years. He completed the training requirements and he was awarded military occupational specialty (MOS) 76V (Storage Specialist). He was assigned to Germany with duties in his MOS on 9 December 1980. While assigned to Germany on 1 December 1981, he was advanced to the rank of specialist four/E-4, which was the highest rank he achieved. 4. A partial Charge Sheet, shows he was charged with wrongfully purchasing, selling, possessing, and transferring some amount of marijuana in the hashish form, on 27 April 1982. 5. On 23 June 1982, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him, under no circumstances did he desire further rehabilitation, nor did he desire to perform further military service. He acknowledged that he understood he could receive an UOTHC discharge and that he might be deprived of all benefits as a result of such a discharge. He acknowledged he understood that there was no automatic upgrading nor review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR, if he wished a review of his discharge. He acknowledged he realized the act of consideration by either board did not imply that his discharge would be upgraded. He also declined to submit statements in his own behalf. 6. His medical examination is not available for review with this case. However, his Medical History shows he stated he was in good health on 28 June 1982. He underwent a mental status evaluation, on the same date, and no significant mental illness was found, he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in board proceedings. 7. His immediate and intermediate commanders recommended approval of his request with an UOTHC discharge. 8. On 30 June 1982, the appropriate authority approved his request for discharge under the provisions of chapter 10, Army Regulations (AR) 635-200, for the good of the service in lieu of trial by court-martial and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 9. Accordingly, on 19 July 1982, he was discharged in pay grade E-1. The DD Form 214 that was issued shows he completed 1 year, 11 months, and 1 day of net active service this period. His awards are listed as the Army Service Ribbon, Overseas Service Ribbon, and Sharpshooter Marksmanship Qualification Badge (M-16) Rifle. His DD Form 214 also shows in: * Character of Service, “Under Other Than Honorable Conditions” * Separation Authority “Chapter 10, AR 635-200 * Narrative Reason for Separation, “Administrative Discharge Conduct Triable by Court-Martial” 10. AR 635-200 states a chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. An 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. 11. Regarding the applicant’s contention that he was told his discharge would automatically be upgraded to honorable service within 6 months. At the time of discharge, he acknowledged in writing that he understood there was no automatic upgrading nor review of a less than honorable discharge. He acknowledged he understood he must apply to the ADRB or the ABCMR, if he wished a review of his discharge. He also acknowledged he understood the act of consideration by either board did not imply that his discharge would be upgraded. 12. Additionally, regarding his desire to obtain VA benefits. The ABCMR does not grant requests for the correction of records solely for making the applicant eligible for veterans or other benefits. The Board decides every case individually based upon its merits when an applicant requests a correction to the military record. 13. The applicant was discharged for wrongfully purchasing, selling, possessing, and transferring some amount of marijuana in the hashish form. He completed 1 year, 11 months, and 1 day of his 3-year enlistment obligation. 14. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 15. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and or submissions in support of the petition. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Based upon the criminal activity including the distribution of illegal drugs to others and the lack of any mitigation for this conduct, the Board concluded there was insufficient evidence of an error or injustice warranting the correction of the applicant’s characterization of service. 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, 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate. b. 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. c. 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. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20220001583 1 ABCMR Record of Proceedings (cont) AR20220001583 1