IN THE CASE OF:  BOARD DATE:  6 August 2021 DOCKET NUMBER:  AR20210008788 


APPLICANT REQUESTS:  The applicant requests, in effect, reconsideration to upgrade his under other than honorable conditions discharge 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 or Discharge from Active Duty)



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20130020274 on 22 July 2014.

2.The applicant states his DD Form 214 stated, after 6 months his discharge turns into“other than honorable status”.  He believes after 6 months his DD Form 214 status wasnot changed to honorable and his discharge was never reviewed.  He never neededmilitary assistance before, so he never knew.

3.On 1 August 1984, the applicant enlisted in the Regular Army for a period of 3 years.He completed training requirements and was awarded military occupational
specialty 11B (infantryman).

4.On 14 December 1984, he accepted non-judicial punishment (NJP) under the
provisions of Article 15, of the Uniform Code of Military Justice (UCMJ) for possessing
marijuana.

5.His record shows he was absent without leave from 22 December 1984 to 2 January1985.  He was counseled for not being at accountability formation on 11 January 1985.The counseling also states the applicant had repeatedly missed formation since hereturned from being AWOL.

6.In January 1985, a bar to reenlistment was imposed against him based on his receiptof NJP for possession of marijuana and going AWOL.  The applicant had no desire toremain as a member of the Army.  His motivation and attitude toward the military lifewas poor, and his approach to problems was to flee from them.  The applicant did not desire to submit a statement in his own behalf. 

7.On 15 January 1985, the applicant was medically cleared for chapter 14 separationaction.  He was psychiatrically cleared for any administrative action deemed appropriateby his chain of command on 25 January 1985.

8.On 6 February 1985, the applicant was convicted by a summary court-martial ofbeing absent without leave from 22 December 1984 to 2 January 1985 and failure to
repair. He was sentenced to confinement for 30 days. On 13 February 1985, the
convening authority approved the sentence.

9.On 12 March 1985, he was notified of his pending separation under the provisions ofArmy Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel),paragraph 14-12c, for misconduct (commission of a serious offense). The unitcommander cited:

•the applicant's constant failures to repair

•his level of motivation, morale and attitude were always below standard

•his job performance was unacceptable

•he had two positive urinalyses



10.On 12 March 1985, he consulted with counsel and he was advised of the impact ofthe discharge action. He acknowledged that he might encounter prejudice in civilian lifeif he were issued an under other than honorable conditions discharge. He alsoacknowledged that he may be ineligible for many or all benefits as a veteran under bothFederal and State laws. He elected not to submit a statement in his own behalf.

11.On 23 April 1985, the separation authority approved the recommendation fordischarge and directed the issuance of an Under Other Than Honorable ConditionsDischarge Certificate.

12.On 26 April 1985, he was discharged under other than honorable conditions underthe provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (drugabuse). He completed a total of 7 months and 22 days of creditable active service with34 days of time lost.

13.The U. S. Army does not have, nor has it ever had, a policy to automaticallyupgrade discharges.  Each case is decided on its own merits when an applicantrequests a change in discharge.  Changes may be warranted if the Board determinesthat the characterization of service or the reason for discharge or both were improper orinequitable.  In order to justify correction of a military record the applicant must show tothe satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.     
14.Army Regulation 635-200 sets forth the basic authority for the separation of
enlisted personnel from active duty.  Chapter 14 establishes policy and prescribesprocedures for separating members for misconduct. Specific categories include minordisciplinary infractions, a pattern of misconduct, and commission of a serious offense.The regulation states that abuse of illegal drugs is serious misconduct. The issuance ofa discharge under other than honorable conditions is normally considered appropriate.

15.The ABCMR is not authorized to grant requests for upgrade of discharges solely forthe purpose of making the applicant eligible for veterans' benefits; however, in reachingits determination, the Board can consider the applicant's petition, service record, andstatements in light of the published guidance on equity, injustice, or clemency.


BOARD DISCUSSION: 

The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board considered the applicant's statement, his record of service, 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 for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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. 

After reviewing the application and all supporting documents, the Board found that relief was not warranted. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20130020274 on 22 July 2014. 


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. 

REFERENCES: 

1.Army Regulation 635-200 sets forth the basic authority for the separation of
enlisted personnel from active duty.

a.Chapter 14 establishes policy and prescribes procedures for separating
members for misconduct. Specific categories include minor disciplinary 
infractions, a pattern of misconduct, and commission of a serious offense. The 
regulation states that abuse of illegal drugs is serious misconduct. The issuance 
of a discharge under other than honorable conditions is normally considered appropriate.  

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.   
2.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.

a.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. 
   
     b.  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.  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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