ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160019070 APPLICANT REQUESTS: upgrade of 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) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 does not believe one isolated incident should overshadow his good years of service. He truly regrets his misconduct and he deeply desires to be buried with military honors. The Department of Veterans Affairs (VA) considers all but the period 7 May to 12 August 1992 as honorable service. The incident that led to his discharge took place after he had deployed; he felt like he had temporarily lost his way. 3. The applicant's service records show: a. He enlisted in the Regular Army on 8 June 1983; he held military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist). Effective 14 November 1986, he was promoted to sergeant/E-5. b. On or about 3 June 1987, he was assigned to the 1st Battalion, 82nd Field Artillery Regiment at Fort Hood, TX; he was deployed with his unit to Southwest Asia from 11 October 1990 to 14 April 1991. c. On or about 17 April 1992, following a unit urinalysis, the applicant tested positive for cocaine. On 8 June 1992, the applicant's commander preferred court-martial charges against him for wrongful use of cocaine. d. On 19 June 1992, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, in-lieu of trial by court-martial, under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In his request, he affirmed no one subjected him to coercion and his counsel had advised him of the implications of his request. He also acknowledged he was guilty of the charge. He elected to submit a statement in his own behalf, but it is not available in his service record. e. On 1 July 1992, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; he also directed the applicant's reduction to private/E-1. On 12 August 1992, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 9 years, 2 months, and 5 days of net active service. He had two immediate reenlistments (8 June 1983 to 8 February 1987 and 9 February 1987 to 6 May 1992). He was awarded or authorized: * Army Commendation Medal (2nd Award) * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (3rd Award) * National Defense Service Medal * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon * Southwest Asia Service Medal with three bronze service stars * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Kuwait Liberation Medal 4. The applicant asserts one isolated incident should not overshadow his good years of service. He states, following his deployment to Southwest Asia with his field artillery unit, he felt temporarily lost; this contributed to the misconduct that led to his adverse discharge. His service record shows he served over 9 years and earned numerous awards, to include the Army Commendation Medal (2nd Award) and three awards of the Army Good Conduct Medal. Soldier can voluntarily request a discharge under chapter 10, AR 635-200 when an available punishment for preferred court-martial charges includes a punitive discharge. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 5. Although not required at the time, the September 2000 revision of AR 635-5 mandated the inclusion of the following remarks for separating Soldiers who received a less than honorable character of service: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The applicant is a war veteran with over 9 years of service who accepted a chapter in lieu of court-martial charges for one hot urinalysis. He was remorseful and demonstrates he understands his actions were not that of all Soldiers. The Board agreed the misconduct does not warrant an upgrade to an honorable discharge; however, an under honorable conditions characterization is appropriate based upon the recorded misconduct. 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 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 reissuing the applicant a DD Form 214 for the period ending 12 August 1992 showing his characterization of service as general, under honorable conditions. 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 changing his characterization of service to honorable. 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all decorations, service medals, campaign credits, and badges awarded or authorized. 2. Permanent Orders Number 38-8, dated 28 June 1990, issued by 1st Cavalry Division Artillery, awarded the applicant the Army Achievement Medal (4th Award). 3. Department of the Army General Orders Number 27, dated 1994, awarded the Meritorious Unit Commendation to the 1st Battalion, 82nd Field Artillery Regiment for the period 8 October 1990 to 21 April 1991. 4. The applicant has qualifying service for both the Kuwait Liberation Medal – Saudi Arabia and the Kuwait Liberation Medal – Government of Kuwait. 5. As a result, amend his DD Form 214, ending 12 August 1992, as following: a. delete the Army Achievement Medal (3rd Award) and the Kuwait Liberation Medal. b. add: * Army Achievement Medal (4th Award) * Meritorious Unit Commendation * Kuwait Liberation Medal – Saudi Arabia * Kuwait Liberation Medal – Government of Kuwait REFERENCES: 1. Title 10, USC, 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 (Discharge for the Good of the Service) provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 4. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed either a dishonorable or a bad conduct discharge was available as a punishment for wrongful use of cocaine. 5. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 7. 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 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. 8. AR 635-5 prescribed policies and procedures for the preparation of the DD Form 214. The 1 October 1979 version of the regulation stated immediate reenlistments no longer required the issuance of DD Forms 214. Effective September 2000, and for separating Soldiers who received a less than honorable character of service, the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019070 2 1