ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20170004255


APPLICANT REQUESTS:

*	upgrade of his under other than honorable discharge to general under honorable 
conditions discharge
*	a personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge)
*	DA Form 2627 (Records of Proceedings Under Article 15, Uniform Code of 
Military Justice)
*	discharge proceedings, subject:  Discharge for Misconduct Under Chapter 14, 
Army Regulation 635-200 (Personnel Separations)
*	DA Form 2-1 (Personnel Qualification Record)
*	Certificate of Achievement, 3rd Infantry Division
*	Certificate of Training for completion of Primary Noncommissioned Officer 
Course
*	Certificate for Good Conduct Medal
*	article from the Army Times titled:  97% Error Rate Found on Positive Urine 
Tests

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 (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:

   a.	As a Soldier, his service record illustrates how he advanced through the ranks to 
staff sergeant/E-6 prior to being discharged and reduced in rank to private (PVT)/E-1.  
He had an outstanding record as a Range Inspector.  

   b.  He received a Certificate of Achievement for meritorious service from Battery C, 
1st Battalion, 10th Field Artillery on 12 February 1978.  He received two Good Conduct 
Medals, one of which was for the period 24 October 1980 through 23 October 1983.  He 
was also awarded the Army Service Ribbon, Overseas Service Ribbon, and 
Noncommissioned Officer Professional Development Ribbon (2nd Award).  

   c.  The charge against him stated that between 1 December 1983 and 10 December 
1983, he knowingly and wrongfully used some amount of marijuana.  The applicant 
feels that no consideration was given to the fact that a couple of months prior, he 
received the Good Conduct Medal and on 1 October 1983 and was promoted to Chief 
of Ammunition Section for a Battery A, 1st Battalion, 94th Field Artillery in Germany.

   d.  He has attached an article from the Army Time dated 2 April 1984, titled 97% 
Error Rate Found on Positive Urine Tests that states a breakdown of Army drug testing 
procedures that could affect tens of thousands of Soldiers.  

3.  The applicant provides:

	a.  Article 15 that shows he accepted nonjudicial punishment on 23 December 1983 
for knowingly and wrongfully using marijuana during the period of 1 December 1983 to 
10 December 1983,.  He was reduced to sergeant (SGT)/E-5.

	b.  Discharge proceedings where his immediate commander recommended him for 
discharge under paragraph 12(d), AR 635-200, Misconduct-Abuse of Illegal Drugs, due 
to a positive urinalysis on 30 November 1983 and 22 December 1983.  

	c.  DA Form 2-1 that shows his military occupational specialty, overseas service, 
aptitude area scores, awards and decorations, appointments and reductions, civilian 
and military education, and assignments.

	d.  Certificate of Achievement he received from the 3rd Infantry Division (ID) for 
meritorious service while assigned to Battery C, 1st Battalion, 10th Field Artillery during 
the period of 12 February 1978 to 12 February 1980.  While he was serving as custodial 
agent and technical assembler in nuclear operations, he contributed greatly to his 
section’s continuous high level of operation readiness.  He participated in numerous 3rd 
ID, VII Corps and U.S. Army Europe Nuclear Safety and Technical Inspections.  

   e.  Certificate of training for his completion of the U.S. Army Primary 
Noncommissioned Officer Course for Combat Arms at Fort Sill, OK, on 18 December 
1981.

	f.  Certificate for the Good Conduct Medal (2nd Award) awarded for exemplary 
behavior, efficiency and fidelity in active federal military service for the period of 
28 October 1980 through 23 October 1983.

	g.  An article from the Army Times dated 2 April 1984, titled 97% Error Rate Found 
on Positive Urine Tests.  The article states that a breakdown of Army drug testing 
procedures could affect tens of thousands of Soldiers,  a major Army laboratory erred 
on 97% of the urine tests it said showed marijuana used during most of 1983.  

4.  The applicant’s service records shows:

	a.  He enlisted in the Regular Army (RA) on 25 October 1977.

	b.  He served in Germany with Battery C, 1st Battalion, 10th Field Artillery from 
17 February 1978 to 12 February 1980.

	c.  He reenlisted in the RA on 28 May 1981 and 13 January 1983.  He served in 
Germany with 1st Battalion, 94th Field Artillery from 26 February 1983 to 15 August 
1984.

	d.  He accepted nonjudicial punishment on 23 December 1983 for knowingly and 
wrongfully using marijuana from 1 December to 10 December 1983.  His punishment 
included reduction to SGT/E-5.

	e.  On 22 February 1984, the applicant's immediate commander notified the 
applicant of his intent to separate him under the provisions of section III, chapter 14, 
paragraph 14-12(d), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel) for misconduct-abuse of illegal drugs.  The two urine samples conducted on 
30 November and 22 December 1983, indicated positive for Tetrahydrocannabinol 
(THC).  It is possible for the applicant to be discharged from the service with an under 
other than honorable conditions discharge.  

	f.  On 22 February 1984, the applicant acknowledged receipt of the letter of 
notification.  After consulting with legal counsel on 24 February 1984, he acknowledged:

*	the rights available to him and the effect of waiving said rights
*	he requested consideration of his case by a board of officers
*	he requested personal appearance before a board of officers
*	he did not submitted statements in his behalf
*	understood he may expect to encounter substantial prejudice in civilian life
*	he may be ineligible for many or all benefits as a veteran under both Federal 
and State laws

   g.  On 4 April 1984, the General Court-Martial Convening Authority approved the 
waiver of further counseling and rehabilitation and directed a board of officers convene 
to determine if the applicant should be retained or discharged. 

   h.  On 16 May 1984, the board of officers convened and after careful deliberation of 
the evidence, the board found that a preponderance of the evidence supported the 
allegation of abuse of illegal drugs by the applicant and that he did use illegal drugs 
(marijuana) on active duty.  The board recommended that the applicant be separated 
from the service for misconduct-abuse of illegal drugs and be issued an under other 
than honorable conditions discharge.  

   i.  On 20 July 1984, the General Court-Martial Convening Authority approved the 
board of officers' findings and recommendations, and directed that the applicant be 
discharged from the service under the provisions of paragraph 14-12c, AR 635-200 for 
misconduct-commission of a serious offense and be issued an under other than 
honorable conditions discharge and reduce him to the lowest enlisted grade.

   j.  The applicant was discharged from active duty on 20 August 1984 under the 
provisions of chapter 14, paragraph 14-12c, AR 635-200 for misconduct-commission of 
serious offense with an under other than honorable conditions characterization of 
service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 
he completed 6 years, 9 month, and 26 days of active service.  It also shows he was 
awarded or authorized:
   
*	Army Service Ribbon
*	Overseas Service Ribbon
*	Noncommissioned Officer Professional Development Ribbon (2nd award)
*	Good Conduct Medal
*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar

5.  By regulation 15-185 (ABCMR), applicants do not have a right to a hearing before 
the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice 
requires.

6.  By regulation 635-200, misconduct – commission of 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.  

7.  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 they 
could make a fair and equitable decision in the case without a personal appearance by 
the applicant.

Additionally, one potential outcome discussed was to upgrade the characterization of 
service to general as the drug test was completed within 30 days, and it takes 
approximately 30 days for marijuana to leave a person’s system.  In addition, the 
member noted he had otherwise honorable service including two Army Good Conduct 
medals.  However, based upon the totality of the facts and circumstances, the Board 
concluded, based upon the record, his discharge characterization was warranted as a 
result of the misconduct, his rank as a NCO, and the level of responsibility he had with 
nuclear ammunitions.  

However, the Board did note that the applicant had a period of prior honorable service 
which was not currently reflected on his DD Form 214 and recommended that change 
be completed to more accurately depict his military service.

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 adding the 
following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous 
honorable active service from 25 October 1977 to 12 January 1983.”
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 for 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 14-12c (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 MCM.  

3.  AR 15-185 (ABMCR) states ABCMR members will review all applications that are 
properly before them to determine the existence of an error.  The ABMCR will decide 
cases on the evidence of record.  It is an investigative body.  The ABCMR may, in its 
discretion, hold a hearing.  Applicants do not have a right to a hearing before the 
ABCMR.  The Director or the ABMCR may grant a formal hearing whenever justice 
requires.  

4.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for 
the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to 
Soldiers who have previously reenlisted without being issued a DD Form 214 and are 
separated with any characterization of service except “Honorable”, enter “Continuous 
Honorable Active Service from” (first day of service for which DD Form 214 was not 
issued) Until (date before commencement of current enlistment).

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 regarding equity, injustice or clemency determinations.  
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs may grant clemency regardless of the court-martial forum.  However, the 
guidance applies to more than clemency from a sentencing in a court-martial; it also 
applies to any other corrections, including changes in discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to an applicant.  


ABCMR Record of Proceedings (cont)	 AR20170004255

2

1