IN THE CASE OF:

		BOARD DATE:  27 January 2020

		DOCKET NUMBER:  AR20160018974


APPLICANT REQUESTS:  Reconsideration of his previous request for an upgrade of 
his under honorable conditions (general) discharge to honorable.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States) in lieu of DD Form 149 (Application for Correction of Military 
Record)
*	General Discharge Certificate 
*	page 2 of his previous Army Board for Correction of Military Records (ABCMR) 
	Record of Proceedings 

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number 
AR20100023121 on 1 March 2011.

2.  The applicant states:

	a.  His medical conditions include anxiety, stress, and post-traumatic stress disorder 
(PTSD).  He sustained chemical burns on his hands while on active duty and he suffers 
from itching under his skin and hands as a result of the chemical burns.  

	b.  His unit commander did not have to separate him from the service.  He should 
have received nonjudicial punishment, reduction in rank, and extra duty instead of 
separation.

	c.  He was not afforded drug abuse counseling or treatment before his separation.  
He asked for it, but was denied.  

	d.  He was on kitchen police duty when his hands were burned.  As a result, the 
older he gets, the pain and itching under his skin is more evident.  He also suffered a 
heart attack.  
	e.  He received a general discharge under honorable conditions after completing 
1 year, 10 months, and 23 days of active service.  He needs his discharge upgraded to 
honorable.  He made mistakes and he is man enough to admit that.  

	f.  He is having problems with anxiety, PTSD, "CDC," and anger management.  The 
burning under his skin causes anxiety and he is always scratching his hands because 
his nerves are bad.  His hearing is also bad; it is loud when you are a tank crewman.  

3.  The applicant enlisted in the Regular Army on 30 January 1985 and he was awarded 
military occupational specialty 19E (M48-M60 Armor Crewman) upon completion of 
initial entry training.  

4.  On 23 December 1985, the applicant was counseled for testing positive in a 
urinalysis for the use of an unspecified drug.  The counseling form shows he was 
informed that if he tested positive again for the use drugs, he would be separated from 
the Army.  He was also informed that he would be enrolled in the drug and alcohol 
abuse program.

5.  The applicant was promoted to the rank and grade of specialist four/E-4 on 1 March 
1986.

6.  On 19 September 1986, the applicant received nonjudicial punishment under the 
provisions of Article 15, Uniform Code of Military Justice, for wrongful use of cocaine 
during the period between on or around 27 July 1986 and on or around 6 August 1986.

7.  On 8 December 1986, the applicant's commander informed him that he was initiating 
action to separate him from the Army under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a 
serious offense, with a general under honorable conditions characterization of service.  
The commander stated the reason for the proposed separation action was the 
applicant's commission of a serious offense which could result in a punitive discharge.  
The applicant was advised of his right to provide statements in his own behalf and of his 
right to consult and be represented by an officer of the Judge Advocate General's (JAG) 
Corps or by a civilian attorney at no cost to the Government.  

8.  On 8 December 1986, the applicant acknowledged receipt of the proposed 
separation action and also acknowledged he was advised of his right to consult with a 
JAG officer.  He further acknowledged he understood he may expect to encounter 
substantial prejudice in civilian life if a general, under honorable conditions discharge 
was issued to him and that he understood that if he received a character of service of 
less than honorable, he may apply to the Army Discharge Review Board or this Board 
for an upgrade of his discharge; however, he realized that an act of consideration by 
either board did not imply his discharge would be upgraded.  He elected not to submit 
statements in his own behalf and declined the opportunity to consult with legal counsel.

9.  On 9 December 1986, the applicant's commander formally recommended to the 
chain of command the applicant's separation under the provisions Army Regulation 
635-200, paragraph 14-12c, because he was a second time offender and in accordance 
with the regulation, all Soldier's must be processed for separation after the second 
offense.

10.  On 10 December 1986, the separation authority approved the applicant's 
separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, 
with his service characterized as general under honorable conditions.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) 
confirms he was discharged on 22 December 1986 under the provisions of Army 
Regulation 635-200, paragraph 14-12c, by reason of misconduct-drug abuse, with an 
under honorable conditions (general) characterization of service.  

12.  The applicant provided page 2 of his previous ABCMR Record of Proceedings and 
in a hand-written note, stated that his unit commander denied treatment for the drug 
abuse, which was not fair to him because he had asked for help.  

13.  On 26 December 2019, the Army Review Boards Agency psychologist/medical 
advisor provided an advisory opinion.  The advisory found no evidence of a behavioral 
health and/or physical medical condition that would mitigate the applicant's acts of 
misconduct that led to his discharge.  A copy of the complete medical advisory was 
provided to the Board for their review and consideration.

14.  The applicant was provided a copy of the advisory opinion on 5 January 2020
and given an opportunity to submit comments.  He did not respond.


BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, a medical advisory opinion, and published DoD guidance for 
liberal consideration of discharge upgrade requests. The Board considered the 
applicant's statement, his record of service, the frequency and nature of his misconduct, 
and the reason for his separation. The Board considered the applicant's claims 
regarding behavioral health and other medical conditions and the review and 
conclusions of the medical advising official based on available medical records.  The 
Board found insufficient evidence of in-service mitigating factors and concurred with the 
conclusion of the medical advising official regarding his misconduct not being mitigated 
by a behavioral health condition or any physical conditions.  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.


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, United States 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 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.  

2.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  Chapter 14 provides for separation for various types of misconduct, which 
include drug abuse.  The regulation in effect at the time states that individuals identified as 
drug abusers may be separated prior to their normal expiration of term of service.  
Individuals in pay grades E-5 and above must be processed for separation upon discovery 
of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug 
offense and must be processed for separation after a second offense.  The issuance of a 
discharge under other than honorable conditions was normally considered appropriate.  

3.  Army Regulation 635-200, 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.  

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Service Discharge Review Boards and Service 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 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.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20160018974


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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