IN THE CASE OF: 

		BOARD DATE: 27 January 2023

		DOCKET NUMBER: AR20220007494


APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) 
discharge be upgraded to honorable or under honorable conditions (general) and that 
he be afforded a personal appearance hearing in person or via video.

APPLICANT'S SUPPORTING DOCUMENT(S) 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 3-year time frame provided in Title 10, U.S. 
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 he was discharged for using and possessing recreational drugs, 
marijuana. He had been introduced to drugs while serving in Germany by other 
Soldiers. He was set up but found not guilty and was told he would receive a general 
discharge. He just wants to clear his name and record. He has always hated receipt of 
the UOTHC and does not do drugs or drink. He is a family mand who helps others in a 
rehabilitation program.

3.  On his DD Form 149, the applicant states he was submitting two letters of support; 
however, neither were included in his application. 

4.  The applicant enlisted in the Regular Army on 27 February 1990 for 4 years. He 
completed training and was awarded military occupational specialty 21V (Unit Level 
Tactical Communications Systems Operator/mechanic). The highest grade he held was 
E-3.

5.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform 
Code of Military Justice on 8 October 1991, for on or about 21 September 1991, 
operating a vehicle while drunk. His punishment was reduction to the grade of E-1; 
forfeiture of $376.00 pay per month for two months, suspended; and extra duty and 
restriction.  

6.  The applicant received a Bar to Reenlistment on 10 February 1992 (that was 
approved on 12 March 1992) based on the NJP action. He was afforded the opportunity 
to submit a statement on his behalf, but he declined to do so. 

7.  Special Court-Martial Number 11, issued by Headquarters, 1st Armored Division, 
Germany on 6 October 1992, shows the applicant was charged with wrongfully 
distributing one gram of marijuana on 15 January 1992 and wrongfully possessing two 
grams of marijuana on 1 February 1992. The applicant had been arraigned on 8 July 
1992, and the proceedings ware terminated by the military judge due to the approval of 
the applicant's request for discharge under Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 10.

8.  The applicant's record is void of any of his separation processing documentation.

9.  The applicant was discharged on 27 July 1992. His DD Form 214 shows he was 
discharged, in the grade of E-1, under the provisions of AR 635-200, Chapter 10 and his 
service was characterized as UOTHC. He was credited with 2 years, 5 months, and 1 
day of net active service. 

10.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge. Subsequent to being charged, he would have 
consulted with counsel and requested discharge under the provisions of Army 
Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge 
in lieu of trial by court-martial. 

11.  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.





BOARD DISCUSSION:

1.  The Board found the available evidence sufficient to consider this case fully and 
fairly without a personal appearance by the applicant.

2.  The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, and published Department of Defense guidance for 
consideration of discharge upgrade requests. The Board considered the applicant's 
statement, his record of service, his bar to reenlistment, 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

: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, U.S. 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 sets forth the basic authority for the separation of enlisted 
personnel. The version in effect at that time it provided that:

	a.  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.  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. A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

	c.  Chapter 10 of that regulation provided, in pertinent part, that a member who had 
committed 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 under other than honorable 
conditions discharge was normally considered appropriate. 

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct. The ABCMR may, 
in its discretion, hold a hearing or request additional evidence or opinions. Additionally, 
applicants do not have a right to a hearing before the ABCMR. The Director or the 
ABCMR may grant a formal hearing whenever justice requires.

4.  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.)	AR20220007494


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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