BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006843 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006843 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his general, under honorable conditions discharge. He also requests personal appearance before the Board. 2. The applicant states that he was stationed in Germany and his unit deployed in support of Operation Desert Storm. He states that he was an outstanding Soldier and adds when "I didn't get deployed, I believed I wasn't a priority." a. He states that both he and his wife asked his first sergeant for help long before he tested positive (on a unit urinalysis test). However, he was treated with prejudice and ignored. b. Had he gotten the help he needed, things would be different. He adds that his wife, Doris W___, who currently lives in Germany and can verify this information. 3. The applicant provides no additional documentary evidence in support of his application. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army (RA) on 19 January 1988 for a period of 3 years. a. Upon completion of training he was awarded military occupational specialty 54B (Chemical Operations Specialist/Nuclear, Biological, Chemical Reconnaissance). b. He departed the United States for Germany on 18 July 1988. (1) He was assigned to Headquarters and Headquarters Company, 1st Battalion, 15th Infantry, from 21 July 1988 to 4 October 1990. (2) He was promoted to specialist/pay grade E-4 on 19 June 1990. c. He reenlisted in the RA on 6 November 1990 for a period of 3 years. (1) He was assigned to the 92nd Chemical Company from 5 October 1990 to 1 September 1992. (2) He was laterally appointed to corporal (E-4) on 17 April 1991. 3. A DA Form 5180-R (Urinalysis Custody and Report Record), dated 23 June 1992, shows the applicant tested positive for cocaine. 4. On 16 July 1992, the applicant accepted nonjudicial punishment (NJP) under the provisions of (UP) Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using some amount of cocaine between 23 May 1992 and 2 June 1992. He acknowledged that he was afforded the opportunity to consult with legal counsel. He indicated that he would not present matters in defense, mitigation, or extenuation. His punishment was reduction to private (E-1) and forfeiture of $300.00 pay per month for two (2) months. The applicant did not appeal the NJP. 5. A DA Form 3822-R (Report of Mental Status Evaluation), dated 21 July 1992, shows the applicant underwent a mental status evaluation. The mental health provider found the applicant's behavior was normal; and he was fully alert. His mood was unremarkable, his thinking process was clear, his thought content was normal, and his memory was good. He also found the applicant was mentally responsible, had the mental capacity to understand and participate in board proceedings, and met medical retention standards. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. 6. On 27 July 1992, the applicant underwent a separation medical examination. A review of the Standard Form (SF) 93 (Report of Medical History) completed by the applicant and the SF 88 (Report of Medical Examination) completed by the examining physician failed to reveal any finding of an unfitting medical condition. The applicant was found qualified for administrative separation. 7. On 12 August 1992, the company commander notified the applicant that he was initiating action to separate the applicant UP Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, based on abuse of illegal drugs. The reason for his proposed action was the applicant received a Field Grade Article 15 for wrongfully using some amount of cocaine. The applicant was informed of the separation procedures and his rights. 8. On 12 August 1992, the applicant consulted with legal counsel. He was advised of the basis for the contemplated separation action, of the rights available to him, and the effect of any action taken by him in waiving his rights. a. The applicant acknowledged he understood that he may be discharged with either an honorable or a general, under honorable conditions discharge. b. The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if he was issued a general, under honorable conditions discharge. c. He was advised that he could submit statements in his own behalf. The applicant indicated that he submitted statements in his behalf. (The entry, "SM [Service Member] failed to submit statements within his allotted amount of time" is typed on the document after the statement, along with initials and a date. A review of the separation packet failed to reveal any statements in his behalf.) 9. On 12 August 1992, the commander recommended the applicant be separated from military service UP AR 635-200, paragraph 14-12c, based on abuse of illegal drugs. The commander noted, in accordance with AR 635-200, chapter 14, paragraph 14-12c, first time drug offenders, grade E-4 and below, who have completed 3 years of service will be processed for separation. He also noted the applicant had been counseled by his chain of command on numerous occasions. He concluded that disposition by any other means would not be in the best interest of the U.S. Army and recommended any further requirement for rehabilitating the applicant be waived. 10. The Officer in Charge, Office of the Staff Judge Advocate, Kitzingen Branch, reviewed the applicant's separation action and found it to be legally sufficient. 11. On 14 August 1992, the separation authority approved a waiver of any further requirements for rehabilitating the applicant as further rehabilitative efforts would not be in the best interest of the Army and would not produce a quality Soldier. He also approved the applicant's separation action and directed the issuance of a General Discharge Certificate. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 19 January 1988 and he was discharged on 3 September 1992 UP AR 635-200, paragraph 14-12c, based on misconduct (abuse of illegal drugs) with service characterized as under honorable conditions (general). He had completed 4 years, 7 months, and 15 days of net active service this period. Item 18 (Remarks), in pertinent part, shows, "Immediate Reenlistments This Period: 19 January 1988 through 5 November 1990." 13. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. a. Chapter 3, paragraph 3-7a, provides that 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. Chapter 3, paragraph 3-7b, provides that 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. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It contains item-by-item instructions for completing the DD Form 214. It shows item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks. a. For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214 enter, "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)." b. However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable enter, "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends that his general, under honorable conditions discharge should be upgraded because he was an outstanding Soldier, but his chain of command was prejudiced against him and denied his request for help long before he tested positive for his use of an illegal drug. He also requests personal appearance before the Board. 2. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. 3. During the period of service under review the applicant was afforded the opportunity to meet with legal counsel during both his NJP proceedings and his separation processing. a. He did not submit any statements or other evidence in his behalf on either occasion. b. The applicant's contention of prejudice by his chain of command is not corroborated by any available records. 4. The evidence of record shows the applicant tested positive for the use of cocaine, which led to NJP and his administrative separation action. At that time, the commander noted the applicant had been counseled by his chain of command on numerous occasions, which argues against the applicant's contention that his chain of command was prejudiced, failed to help him, and that he was not given the opportunity for rehabilitation. 5. The applicant's discharge UP AR 635-200, paragraph 14-12c, for misconduct based on abuse of illegal drugs was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The separation authority determined his service subsequent to his reenlistment was best characterized as under honorable conditions. 6. The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. a. The applicant enlisted in the RA on 19 January 1988 and he reenlisted in the RA on 6 November 1990. b. A DD Form 214 was not authorized for issuance when he was discharged on 5 November 1990 to reenlist in the RA. c. For Soldiers who have multiple continuous enlistments and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment. d. Item 18 of the applicant's DD Form 214 shows the period of his initial enlistment; however, it does not show that period of service as honorable. BOARD DATE: 10 April 2018 DOCKET NUMBER: AR20160006843 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 18 of his DD Form 214 the entry: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19880119 UNTIL 19901105." 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of his under honorable conditions (general) discharge. I certify that herein is recorded the true and complete record of the proceedings //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006843 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006843 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2