ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 June 2019

	DOCKET NUMBER:  AR20170003907


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record) (online)
* DD Form 214 (Report of Separation from Active Duty)

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.  When he was 17 years of age he was sent to Germany and was assigned to a short timers room where there was a lot of drugs around him.  He started to smoke hash and use drugs that he obtained from his roommates.  He tested positive on urinalysis a few times and busted with hash during an inspection.  He was never provided drug rehabilitation, drug support counseling, or a chance to change his military life.  He was sent to an attorney who told him that he needed to take the discharge or go to the Mannheim, Germany military prison.  He was scared so he took the discharge, but did not realized how bad the discharge was until he arrived at Fort Dix, NJ which by then it was too late.  He feels that he was treated too harsh for someone 17 years of age.

   b.  The applicant’s father was in the service for 23 years and left his mother and him when he was 9 years of age, never to hear from him again.  His father was an alcoholic, which might be why he used drugs to cope with being away from home and the peer pressure of his older roommates.

   c.  The applicant was in school to get his General Education Diploma.  He thought he was doing well and did not get into any trouble while he was in the service.  Everyone liked him to include the first sergeant and captain, who allowed him to go to France to see his grandmother.

   d.  He was kicked out with nothing and no support to get better, but luckily he was strong and got a job working in the oil fields.  He continued to use drug for years.  He was getting better until he was caught growing marijuana for his Hepatitis C that he believes he may have contracted while in the military.  He cannot use pharmaceutical drugs because they cause him to get violent and blackout but the marijuana helps his condition.  He did not have the money to buy the marijuana so he grew his own.  He now has a felony five for personal cultivation in the state of Arizona.

   e.  He has wanted to get his discharge corrected for years, but was unable to find any assistance.  The applicant was told that he would need to get an attorney, but did not have enough money to hire one.  He has been ashamed of his discharge his entire life.  The DD Form 214 only states that he cannot reenlist, so he does not know what else to say to defend himself or what correction to ask for.  He is unsure what the injustice was or if he has one but is hoping the Board can provide assistance.
 
3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 12 April 1976.

	b.  He served in Germany from 14 August 1976 to 14 January 1977.

	c.  The complete facts and circumstances surrounding the applicant’s discharge are unavailable for the Board to review.  However, his record contains a DD Form 214, which outlines his reason for separation.

	d.  On 30 December 1976, the applicant was reduced in grade from private/E-2 to private/E-1.

	e.  The applicant was discharged on 17 January 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (For the Good of the Service – in Lieu of Court Martial).  His DD Form 214 shows he completed 9 months, and 6 days of active service.  It also shows he was awarded or authorized a Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  By regulation, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service. 
5.  In reaching this determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance.  


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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, set forth the basic authority for the separation of enlisted personnel. 

	a.  Paragraph 1-9d (Honorable Discharge)  An honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.  Where a member has service faithfully and performed to the best of his ability and has been cooperative and conscientious in doing his assigned tasks, he may be furnished an honorable discharge

	b.  Paragraph 1-9e (General Discharge)  A general discharge is a separation from the Army under honorable conditions of an individual whose military records is not sufficiently meritorious to warrant an honorable discharge.  

	c.  Chapter 10 of that regulation states an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An undesirable discharge certificate will normally be furnished an individual who is discharged for the good of the service.

3.  AR 635-5-1 (Separation Program Designators), appendix A-1, in effect at the time, states separation code JFS is Involuntary discharges – administrative discharge-conduct triable by court-martial.  Paragraph 3a (Discharge Involuntary) states a complete termination of military service, or termination of a specific status when holding more than one compatible status, provided the discharge is directed by an established directive and does not require an application or request for discharge by the Soldier concerned.  Waiver of board or request for discharge in lieu of board proceedings does not constitute an application for discharge.

4.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170003907


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