ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
	BOARD DATE:  28 March 2019

IN THE CASE OF: 

APPLICANT REQUESTS: upgrade of his general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for Review of Discharge)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 under distress and stress due to drug use and there was no treatment provided.  His mother died suddenly and his wife had left him.  No counseling was provided for his situation or condition.  He has spent the remainder of his civilian life attuning for not completing his military service.  He was an excellent Soldier until that point.  He has since rehabilitated and provided for his community.  He wants to clear his name and record.  He has been a licensed chemical dependency counselor for over 20 years and he is an ordained minister, and volunteer director of a non-profit organization.  

3.  Review of the applicant's records shows: 

	a.  7 August 1987, he enlisted in the Regular Army (RA).

	b.  29 March 1988, he received a dishonored check notification. 

	c.  21 February 1989, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine.  His punishment consisted in part of reduction to E-1 and suspended forfeiture of pay. 

	d.  23 February and 6 March 1989, he received two more delinquency account notification letters for unpaid balances. 

	e.  16 March 1989, the suspension of forfeiture of pay was vacated after he willfully disobeyed a lawful order from his commander to take a urinalysis. 

	f.  10 March 1989, he underwent a mental status evaluation that cleared him psychiatrically for administrative actions deemed appropriate by his chain of command. 

	g.  10 March 1989, separation proceedings were initiated for the commission of a serious offense (use of cocaine) under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14.  His immediate commander recommended a general discharge.

	h.  10 March 1989, he consulted with legal counsel.  He was advised of the basis for the contemplated action to separate him for misconduct.  He requested to waive consideration by or appearance before a board of officers and declined making a statement on his own behalf.

	i.  17 March 1989, consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 and directed the issuance of a General Discharge Certificate.

	j.  24 March 1989, he was discharged from active duty under the provision of AR 635-200, chapter 14-12c (Misconduct - Abuse of illegal drugs).  He completed 1 year, 7 months, and 218 days of active service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded/authorized the Army Service Ribbon. 

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  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.

6.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.




BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was not warranted.  The Board found that based upon the multiple occasions of misconduct and the short term of service, the characterization of service received at the time of discharge was appropriate.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

	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.

	c.  Paragraph 14-12c, as in effect at the time, states members are subject to separation under this provision when they commit a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Courts-Martial (drug offenders). 

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) 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.  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 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.  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.

ABCMR Record of Proceedings (cont)	 AR20160015893


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