IN THE CASE OF: BOARD DATE: 1 August 2023 DOCKET NUMBER: AR20230000783 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge) 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 due to drug possession, but the drugs were not his; he took a discharge in lieu of court-martial. 3. On 3 April 1980, the applicant enlisted in the Regular Army, for a 3-year service obligation. Upon completion of training and award of military occupational specialty 16D (Hawk Missile Crewmember), he was assigned to Germany, arriving on 30 August 1980 4. On 21 August 1981, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for two specifications of failing to go to his appointed place of duty at the time prescribed on or about 10 July 1981. His punishment included forfeiture of $100 for one month, and reduction to E-2 (suspended for 90 days). He appealed his punishment. 5. On 28 August 1981, his commander wrote a memorandum of rebuttal to the applicant s appeal, stating he was given numerous opportunities to correct his behavior, and a record of performance, as follows: * on 7 May 1981, for disobeying a lawful order from a noncommissioned officer (NCO); for being absent from his place of duty, and for disrespect to a NCO * for being absent from his place of duty on 24, 26, and 27 May 1981 * on 28 May 1981, for being disobedient to an NCO * on 1 June 198,1 for being absent from his place of duty * he was pending court-martial for possession of 35 grams of hashish * being absent from his place of duty on 27 and 28 August 1981 6. On 31 August 1981, his previously suspended reduction to E-2, was imposed. 7. Court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). However, the relevant DD Form 458 (Charge Sheet) is not available for review. 8. On an undetermined date, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 10, for the good of the service. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge of possession of marijuana in the hashish form and was afforded the opportunity to submit a statement in his own behalf. 9. On 2 November 1981, the applicant's commander recommended approval of his discharge request and the issuance of an UOTHC discharge. The commander noted the applicant was a substandard Soldier with a negative attitude towards the military and his responsibilities as a Soldier. He had a history of absenting himself from his appointed place of duty and disobeying orders from his NCOs. In addition to his pending court-martial for possession of 34 grams of hashish, he was also pending Article 15 for possession of a smoking device containing hashish residue on 16 October 1981. Subsequently, his chain of command concurred with the request for discharge. 10. On 17 November 1981, the separation authority approved the applicant's request for discharge in lieu of court-martial, and directed his reduction to the lowest enlisted grade with the issuance of an UOTHC Discharge Certificate. 11. On 11 December 1981, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for conduct triable by court martial. His service was characterized as UOTHC. He was credited with completing 1 year, 8 months, and 9 days of net active service. 12. In reaching its determination, the Board can consider the applicant s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. Although the specific court-martial charges are unknown, the evidence shows the applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and carry an under other than honorable conditions characterization of service. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of 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. 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, 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 the time 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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) AR20230000783 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1