ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  6 August 2021 DOCKET NUMBER:  AR20210007989 


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge, and restoration of his rank/grade to sergeant (SGT)/E-5.  Additionally, he requests a personal appearance before the Board. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 8 October 2020, with self-authoredstatement, dated 22 September 2020

•Enclosure 1 – DD Form 214 (Certificate of Release or Discharge from ActiveDuty), for the period ending 4 March 1987

•Enclosure 2 – Article Abstract – Analytical Toxicology, dated 1 September 1986

•Enclosure 3 – DA Form 5180-R (Urinalysis Custody and Report Record), dated9 January 1987

•Enclosure 4 – DA Form 5180-R, dated 7 January 1987, with Tab A - FalsePositive

•Enclosure 5 – License and Certification for Marriage, State of South Carolina

•Enclosure 6 – Judgement of Absolute Divorce, filed on 17 February 1999

•Enclosure 7 – Statement from former spouse, dated 28 April 2018

•Enclosure 8 – Statement from former spouse on Hostile Work Environment

•Enclosure 9 – DD Form 214, for the period ending 4 March 1987

•Enclosure 10 – Florida Department of Law Enforcement transaction receipt



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, U.S.Code (USC), Section 1552 (b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.He was ordered to do a urinalysis test twice, yet he was presented only with thepositive results.  This was devastating news to him as he never consumed marijuana.  His former wife, a retired Active Guard Reserve (AGR) Unit Administrator and District Commander for the American Legion Department of Puerto Rico, searched and contacted him after 30 years.  Due to not finding a suitable lawyer, service officer, or Department of Veterans Affairs (VA) Representative that could take his case, his ex-wife took it upon herself to represent him. 

b.His record of promotions shows he was generally a good service member.  Heearned the grade of E-5 within the first two years of his enlistment and prior to his date eligible to return from overseas (DEROS).  His criminal record before, during, and after military service indicated no minor offenses or convictions.  His discharge was based on a hostile work environment.  His command abused authority when it decided to discharge him and to give him a bad conduct discharge (BCD).  He was denied his right to counsel during the process through intimidation. 

c.Now that he and his former wife have been informing themselves on how hecould have refused his commander’s intimidation and could have sought counsel, he believes the second test would have surfaced amongst other evidence.  As well as, proof of the hostile work environment and the unreliability of the drug testing lab at Fort Meade, Maryland (as shown in the abstract three months before the tests).  He would have completed an honorable life-time commitment to the Armed Forces. 

3.The applicant enlisted in the Regular Army on 8 April 1982.  He reenlisted in theRegular Army on 13 November 1985, in the rank/grade of SGT/E-5.

4.The applicant accepted non-judicial punishment on 5 February 1987, under theprovisions of Article 15 of the Uniform Code of Military Justice, for wrongful use ofmarijuana, on or about 8 December 1986.  He did not demand trial by court-martial, andhis punishment included reduction to the grade of E-4, forfeiture of pay for two months,and 45 days of extra duty.

5.The applicant's commander notified the applicant on 11 February 1987 that he wasrecommending his separation from service under the provisions of Army Regulation635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, formisconduct – illegal drug use.

6.The applicant consulted with counsel on 11 February 1987 and was advised of thebasis for the contemplated actions to separate him and of the rights available to him.He elected not to submit a statement in his own behalf.

7.The applicant's immediate commander formally recommended his separation fromservice under the provisions of Army Regulation 635-200, Chapter 14, by reason ofmisconduct.  The separation authority approved the recommended discharge on23 February 1987 and directed the issuance of a DD Form 257A (General Discharge Certificate). 

8.The applicant was discharged on 4 March 1987, in the rank/grade of specialist four(SP4)/E-4.  His DD Form 214 confirms he was discharged under the provisions of ArmyRegulation 635-200, paragraph 14-12c, by reason of misconduct – drug abuse.  Hisservice was characterized as under honorable conditions (general).

9.The applicant provides:

a.Two Urinalysis Custody and Report Records, which show a negative test resultfor tetrahydrocannabinol (THC) on 7 January 1987 and positive test result on 9 January 1987. 

b.A statement from his former spouse detailing what is described as a hostile workenvironment at the applicant’s unit. 

10.The Board should consider the applicant's overall military service and statement inaccordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

1.The Board carefully considered the applicants request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests.  The Board considered the applicant's statement, his record ofservice, the frequency and nature of his misconduct, the reason for his separation andwhether to apply clemency.  The Board found insufficient evidence of in-servicemitigating factors for the misconduct.  The applicant provided one letter of support, andno evidence of post-service achievements to weigh a clemency determination.  Basedon a preponderance of evidence, the Board determined that the character of service theapplicant received upon separation was not in error or unjust.  After reviewing theapplication and all supporting documents, the Board found that relief was not warranted.

2.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction is completed to more accurately depictthe military service of the applicant.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

:XX :XX GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: :XX : : : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

Except for the correction addressed in Administrative Note(s) below, the Board found 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. 


Microsoft Office Signature Line...


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. 


ADMINISTRATIVE NOTE(S): 

A review of the applicant's record shows his DD Form 214, for the period ending 4 March 1987, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries to  
Item 18 (Remarks): 

•SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE

•CONTINUOUS HONORABLE ACTIVE SERVICE FROM 820408 UNTIL 851112




REFERENCES: 

1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.Chapter 14 established policy and prescribed procedures for separatingmembers for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toService Discharge Review Boards and Service Boards for Correction of Military/NavalRecords 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 thecourt-martial forum.  However, the guidance applies to more than clemency from asentencing in a court-martial; it also applies to any other corrections, including changesin a discharge, which may be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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. 
 
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