ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 May 2019 DOCKET NUMBER: AR20170003528 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge. 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: a. He feels that his character of service should be upgraded to honorable. He did have a drug test that was positive. There were at least 10 that had positive results, but there were only two of them that were made an example of and faced punishment. The others were allowed to continue their service with the Army and did not get the same punishment as he and another individual. b. His company commander cornered him and asked him if he had used marijuana to get out of the service. He told him he had not that it was mostly peer pressure that got him to use it. He was young and naive at the time. He did not know that he could request a change and he was frustrated by the decision and put his Army life aside for years. He has a lot of respect for his time in the military and feels that one injustice should not cloud his record of honorable service. 3. A review of his service records shows: a. He enlisted in the Regular Army on 5 February 1987. b. He served in Germany from 29 July 1987 to 18 September 1989. a. c. He received nonjudicial punishment on/for: * 24 May 1989, wrongfully using marijuana * 27 July 1989, wrongfully using marijuana; his punishment included reduction to private/E-2 d. On 28 July 1989, his immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Paragraph 14-12(c), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for commission of a serious offense. f. On 30 July 1989, the applicant acknowledged receipt of the commander's intent to separate him. g. On 3 August 1989, he consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged: * he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions h. His immediate command recommended approval of the separation with a general, under honorable conditions discharge and the intermediate commander recommended approval of the separation with an other than honorable conditions discharge. i. On 24 August 1989, the separation authority approved the applicant’s discharge under the provisions of paragraph 14-12c of AR 635-200 with the issuance of a General Discharge Certificate. j. The applicant was discharged on 19 September 1989, with a general, under honorable conditions characterization of service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 7 months, and 15 days of active service. It also shows he was awarded or authorized: f. * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 7. By regulation, Soldiers are subject to separation for commission of 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 for Courts-Martial. 8. 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 relief was not warranted. Based upon the multiple offenses and the applicant already receiving an Under Honorable Conditions (General) discharge certificate, the Board found there to be no error or injustice which would warrant making a correction to the record. 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. 1535874 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. 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 Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 of that regulation prescribes for the separation of enlisted members for misconduct. It states, in pertinent part, Soldiers are subject to separation for commission of 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 for Courts- Martial. 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 1. 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.