ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:    11 April 2019 DOCKET NUMBER:  AR20160015357 


APPLICANT REQUESTS:  The applicant requests an upgrade of his characterization of service from general under honorable conditions 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.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records (ABCMR) conducted a substantive review of this case and determinedit is in the interest of justice to excuse the applicant's failure to timely file.

2.On 8 April 1985 the applicant enlisted in the Regular Army.  A review of his recordshow the highest grade held was specialist four/E4 and he served in Korea from 21February 1987 through 17 February 1988 .

4.On 14 December 1988, he accepted nonjudicial punishment (NJP) under theprovisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully usingcocaine between 12 and 21 November 1988.  As a result, he was enrolled in theAlcohol and Drug Prevention and Control Program (ADAPCP).

5.Between 1988 and 1989, the applicant was counseled numerous times for variousreasons to include:  leaving his place of duty, failing to be at his appointed place of duty,failure to repair, missing formation, breaking restriction, unsatisfactory performance, hispersonal problems, consequences of misbehavior, substandard duty performance,discharge action, and pending civil court actions.

6.A Bar to Reenlistment Certificate was approved against the applicant on 17 January1989.  The commander cited the basis for the bar was his NJP, and the numerouscounseling statements he received within the last 6 months regarding his poor attitudeand appearance.  He was habitually late for formation, he showed a lack of motivation and initiative, and he showed no potential for further military service. 

7.An ADAPCP Client Program Report, dated 24 July 1989, shows the applicantcompleted the program.  His counselor’s assessment of his progress duringrehabilitation was unsatisfactory.  However, his commander’s appraisal of progress andmilitary effectiveness for efficiency and conduct were rated satisfactory.  ADAPCP’srecommendation to the commander was the applicant’s retention on active duty.

8.A Commanders Report of Disciplinary or Administrative Action shows the applicantwas titled for wrongful possession and distribution of a controlled substance(marijuana); conspiracy; unlawful possession and sale of marijuana, and criminalconspiracy.  The offenses occurred on 28 July 1989.  (As a result of the incident theapplicant spent 3 days in civil confinement.)

9.On 28 September 1989, he accepted NJP under the provisions of Article 15, UCMJ,for signing and official record (the dining facility head count sheet) with intent to deceive,when he did not have a meal card and for failing to go to his appointed place of duty atthe time prescribed on three occasions.

10.On 15 December 1989, the applicant underwent a mental status evaluation and hewas found mentally responsible and he had the mental capacity to understand andparticipate in proceedings deemed appropriate.  He was cleared for separation action.

11.On 15 December 1989, the applicant’s commander notified him he was initiatingaction to separate him under the provisions of chapter 14, paragraph 14-12c, ArmyRegulation (AR) 635-200, for serious misconduct and repeated problems with the use ofillegal drugs.

12.On 18 December 1989, the applicant was advised by consulting counsel of thebasis for the contemplated separation action.  He submitted, an undated, statement inhis own behalf indicating he was not proven guilty of any criminal charges.  Herequested to be separated at the completion of his enlistment (in eight months).  Healso requested to be allowed to earn back his rank of E-4 and be allowed to reenlist.  Hestated he lost his family while serving in Korea.  During the 2 years he had beenassigned to Fort Bliss he had seen his daughter only once, because he had been in thefield or preparing for inspections.  He acknowledged that he made mistakes, but heworked hard and attempted to do his best.  He wanted another chance to rehabilitatehimself in another unit.

13.On 20 December 1989, the applicant’s intermediate commander recommendedseparation under the provisions of chapter 14, paragraph 14-12c, AR 635-200.  Thespecific reasons cited for the recommendation was his adverse actions under Article 15of the UCMJ, misconduct involving controlled substances and that he was underinvestigation by civilian authorities.

14.On 23 January 1990, the appropriate authority approved the recommendation forseparation and directed the applicant receive a general discharge.

15.On 1 February 1990, the applicant was discharged in the rank of E-3.  His DD Form214 shows had completed a total of 4 years, 9 months, and 21 days of creditable activeservice.  He also had 3 days of lost time.  He was awarded the Expert MarksmanshipQualification Badge Rifle (M-16), Army Service Ribbon, Overseas Service Ribbon, ArmyGood Conduct Medal, and Army Achievement Medal.  His DD Form 214 also shows in:

•item 18 (Remarks) CONTINUOUS HONORABLE ACTIVE SERVICE FROM850408-871007 (8 April 1985 through 7 October 1987)

•item 25 (Separation Authority) AR 635-200, paragraph 14-12c

•item 28 (Narrative Reason for Separation) - Misconduct/Abuse of Illegal Drugs



16.On 19 March 1993, the Army Discharge Review Board denied the applicantsrequest for an upgrade of his discharge.

17.On 16 July 2002, the ABCMR denied his request for a change of his narrativereason for discharge.

18.AR 635-200 sets forth the basic authority for the separation of enlisted personnel.Chapter 14 establishes policy and prescribes procedures for separating members formisconduct.  A discharge under other than honorable conditions is normally appropriatefor a Soldier discharged under this chapter.  However, the separation authority maydirect a general discharge if such is merited by the Soldier's overall record.

19.In reaching its determination, the Board can consider the applicant's petition, hisservice record, and his statements in light of the published DOD guidance on equity,injustice, or clemency.

BOARD DISCUSSION: 

After reviewing the application and all supporting documents, the Board found that partial relief was warranted.  Based upon several incidents of misconduct over an extended period of time, the Board concluded that the characterization of service received at the time of discharged was appropriate.   However, based upon the passage of time, the Board felt that some form of clemency would be appropriate, so the Board recommended changing the narrative reason for separation to “Secretarial Authority” in order to provide the applicant greater opportunities for advancing his future endeavors.   

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

:x :x :x GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented does not demonstrate theexistence of a probable error or injustice.  However, under clemency considerationthe Board recommends partial relief by changing item 28 of the applicant’s DD214 to“Secretarial Authority”.2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so muchof the application that pertains to upgrading the characterization of his discharge.

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.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.AR 635-200 sets forth the basic authority for the separation of enlisted personnel.Chapter 14 establishes policy and prescribes procedures for separating members formisconduct.  Specific categories include minor disciplinary infractions, a pattern ofmisconduct, commission of a serious offense, convictions by civil authorities, desertionor absence without leave.

a.Paragraph 14c prescribes separation for commission of a serious offense.Paragraph 14-12c states that abuse of illegal drugs is serious misconduct. 

b.Paragraph 14-c(2)(b) states that second-time drug offenders, grades E1 - E-9,must be processed for separation.  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.   

c.A states an honorable discharge is a separation with honor and entitles therecipient 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.  

3.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.  Clemency generally refers to relief specifically granted from a criminalsentence.  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 maybe warranted based on equity or relief from injustice.

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 based on 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 ofservice 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.