ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 May 2019 DOCKET NUMBER: AR20170002055 APPLICANT REQUESTS: an upgrade of his general 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 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 that he requests an upgrade of his general discharge to an honorable discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the U.S. Army on 29 September 1988. b. On 13 March 1989, he received a general counseling statement for a positive prescreen urinalysis containing cocaine and on 15 April 1989, the positive result came back and he was counseled again. c. On 21 April 1989, he received an Article 15 for wrongful use of cocaine the use of which was detected by biochemical testing done by the military authorities. His punishment included the reduction in rank to the lowest enlisted grade of private/E-1. e. On 8 May 1989, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations), paragraph 14-12c for commission of a serious offense. The reasons for the proposed action was that he tested positive for wrongful use of cocaine. The immediate commander recommended that he receive a general discharge. The immediate commander advised the applicant of his right to: * consult with counsel or retain civilian counsel at no expense to the government * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative separation board * submit statements in his own behalf * waive any of these rights in writing * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge * submit a conditional waiver of his right to have his case heard before an administrative separation board * undergo a complete medical examination and mental status evaluation IAW AR 40-501 (Standards of Medical Fitness) f. On 8 May 1989, the applicant acknowledged receipt of the immediate commander’s decision to recommend him for separation. He consulted with legal counsel on 8 May 1989, and he was advised of the basis for the contemplated action to separate him for commission of a serious offense. He waived his rights contingent on receiving a characterization of service or description of separation no less favorable than honorable condition. He acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He also understands that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded. g. On 10 May 1989, the applicant submitted a self-authored statement on his own behalf apologizing for his actions and requesting a second chance. h. On 18 May 1989, the immediate commander initiated separation action against the applicant under AR 635-200, paragraph 14-12c, commission of a serious offense. The applicant's intermediate commander recommended approval that the applicants discharge with the issuance of an under honorable conditions (general) discharge and no transfer to the Individual Ready Reserve (IRR). i. On 18 May 1989, the intermediate commander recommended that under the provisions of AR 635-200, chapter 14, paragraph 14-12c, commission of a serious offense, the applicant be separated from the service with an under other than honorable conditions discharge, prior to his expiration of term of service. The intermediate commander also recommended the applicant’s request for a conditional waiver for an honorable discharge be disapproved and not be transferred to the IRR. j. On 22 May 1989, the separation authority approved the request for discharge under the provisions of AR 635-200, chapter 14 and directed the applicant receive a general under honorable conditions discharge. In addition, he directed the applicant's reduction to E-1 in accordance with AR 600-8-19 (Enlisted Promotion and Reduction) and not be transferred to the IRR. l. On 25 May 1989, the applicant was discharged from active duty. His DD Form 214 shows he was discharged under the provisions of AR 635-200, paragraph 14-12c with a general, under honorable conditions characterization of service. He completed 7 months, and 27 days of active service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Marksman Marksmanship Badge Rifle M-16 * Expert Marksmanship Badge Grenade 4. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel 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. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon the short term of service prior to a pattern of misconduct beginning, as well as a lack of character evidence submitted by the applicant showing he has learned and grown from the events leading to the discharge, the Board concluded that 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. All Soldiers must be processed for separation after a second offense. b. Paragraph 3-7a (Honorable Discharge ) 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. 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) AR20170002055 5 1