ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20170001053 APPLICANT REQUESTS: an upgrade of her general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States). 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 she is requesting an upgrade for job employment. 3. A review of the applicant’s service records shows the following: a. She enlisted in the Regular Army on 3 June 1980 and reenlisted in the RA on 8 March 1984. b. She served in Germany from 9 December 1981 to 27 March 1985. c. A DA Form 268 (Report for Suspension of Favorable Personnel Actions) was initiated on her on 9 August 1985 for receiving a positive reaction for THC on the field test. d. A DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on the applicant on 15 August 1985 and approved on 20 September 1985 for coming up positive for THC as a result of a urinalysis test administered on 9 July 1985. The results were received on 7 August 1985. e. On 26 September 1985, her immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 14 (Separation for Misconduct), paragraph 14-12(d) (Abuse of illegal drugs) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He recommended an under other than honorable discharge. f. The applicant acknowledged receipt of the commander’s intent to separate her. She consulted with legal counsel who advised her of the basis for the contemplated separation action, its effects, the rights available to her, and the effect of any action taken by her in waiving her rights. a. She understood if she had six or more years of total active duty/or reserve military service or if her separation could result in receiving an under other than honorable conditions discharge, she could request a personal appearance before an Administrative Separation Board. b. She requested consideration of her case by a board of officers and requested a personal appearance before the board of officers. c. She elected to submitted statements in her own behalf. (1) A statement by the applicant, which states the results of the urinalysis test which read positive are not accurate. She has not, nor has she ever been related to any type of illegal drugs. As a noncommissioned officer (NCO), as well as a professional Soldier, she knows that drugs are not tolerated in the Armed Forces. She is also aware of the consequences that follow any drug related incidents. She does not smoke marijuana and does not know the reason why the results read positive. She would never jeopardize her military career. (2) A statement from Staff Sergeant (SSG) X, which states he has been the applicant’s first line supervisor for 90 days. The applicant has shown him that she is hard-working, conscientious, and a knowledgeable Soldier. She strives to increase her knowledge of military subjects. He was totally surprised of the results of the urinalysis. He did not believe the results. The applicant has been too good of a Soldier. (3) A statement from First Sergeant X, which states the applicant has done a great job while assigned to his unit. She is highly motivated and her personal appearance has been the best. Although she came up positive for THC, it has not affected her job performance as one would think. He does not understand why she would throw her career away by coming up positive for THC when they know the rules and regulations pertaining to the administration of a positive reaction to drugs in the Army. (4) A statement from SSG X, which states he has worked with the applicant on a daily basis. She has demonstrated daily that she can handle stressful situations with calm and professionalism. It has been his pleasure to work with a Soldier of her caliber. He recommended retention in the military service. (5) A statement from SSG X, which states she has shown excellent advancement potential. She has rapidly gained knowledge required to perform her duties in an outstanding manner. She works well with others and always displays a bright and cheerful attitude. She has the traits necessary to become an excellent NCO in today’s Army. (6) A statement from Specialist Five X, which states she has known the applicant for the past three years. They have been roommates since May. The applicant has displayed high character in all phases of their friendship. As a Soldier, she carries with her outstanding military appearance, bearing, and integrity. She is definitely a person you can count on and is willing to do anything to help out in any situation. She has never used hard drugs or marijuana in her presence. She felt the applicant should be retained in the Army. (7) A statement from Mr. X, which states the applicant possesses the character, drive, and dedication to duty of a true professional. Her sound judgment has on numerous occasions result in potential hardships to service members and their families being resolved in the most expedited manner. She is an asset to the Army. Her termination from active duty through administrative or any other channels will be a great and unreplaceable loss to the Army and the finance corp. (8) A statement from Specialist Four (SP4) X, which states the applicant has always shown a very cheerful can do attitude and she is always willing to lend a helping hand to others. The applicant is the type of NCO the Army needs more of. She is the type of NCO that will get out there with her subordinates and help them perform their mission. She has all the traits to become an excellent NCO in today’s Army. (9) A statement from SP4 X, which states he is writing this statement on behalf of a good Soldier or better, yet one of the unit’s outstanding leaders. She is one of the leaders who stand out in front of others. She has helped people since he can remember. The applicant has lots of knowledge in her job as well as dealing with people. He thinks she should be retained in the Army. This is one Soldier that he think should stay in the military, end of statement. d. There is no record of an administrative separation board, however the applicant only served 5 years, 7 months, and 5 days of active service. Subsequent to her acknowledgement and consultation with counsel, her immediate commander initiated separation action against her due to misconduct, commission of a serious offense in accordance with AR 635-200, chapter 14. e. On 9 December 1985, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 14-12 with her service characterized as under honorable conditions (general). f. The applicant was discharged from active duty on 7 January 1986. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharge for misconduct – abuse of illegal drugs under the provisions of AR 635-200, chapter 14-12(d). Her service was characterized as under honorable conditions (general). It shows she completed 5 years, 7 months, and 5 days of active service. It also shows she had an immediate reenlistment this period from 3 June 1980 to 7 March 1984. Item 18 (Remarks) does not include an entry for continuous honorable service. 4. By regulation: a. Members will be processed for separation for abuse of illegal drugs. b. Using today’s regulation, Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except “Honorable,” the following statement will appear as the first entry in block 18, “Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued, e.g., 761218) Until (date before commencement of current enlistment, e.g., 821001)”, then enter the specific periods of reenlistments. 5. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted. Based upon the misconduct, the Board concluded that the characterization of service received at the time of discharge was appropriate. However, based upon the guidance on equity, injustice, and clemency, the Board recommended a change to the narrative reason for separation to read Secretarial Authority and to change re-enlistment code to JFF. 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: * changing the narrative reason for separation to “Secretarial Authority” * changing the separation code to “JFF” 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 upgrading the characterization of his discharge. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel: a. Paragraph 3-7a (Honorable discharge) states an honorable discharge is a separation with honor. 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. Paragraph 3-7b (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 of this regulation provides that Soldiers are subject to separation 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. Members against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated will be processed for separation. Abuse of illegal drugs is serious misconduct. 3. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribes policy and gives guidance for the completion of the DD Form 214. It states, in pertinent part for item 18, enter a list of enlistment periods for which a DD Form 214 was not issued. Example: Immediate reenlistments this period: 761210-791001; 791002-821001. 4. AR 635-5, in effect after her discharge, stated that the first entry in block 18 lists reenlistment periods for which a DD Form 214 was not issued, if applicable, e.g., "Immediate reenlistments this period: 761218-791001; 791002-821001." However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," the following statement will appear as the first entry in block 18, "Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued, e.g., 761218) Until (date before commencement of current enlistment, e.g., 821001)"; then enter the specific periods of reenlistments as prescribed above. 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. 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) AR20170001053 5 1