ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 May 2019

	DOCKET NUMBER:  AR20170004732


APPLICANT REQUESTS:  an upgrade of his under honorable conditions 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 he was young and has maintained a clean record.  He would like to set an example for his children and grandchildren.  He is proud of his service and does not want to die with an under honorable conditions discharge on his record.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 2 April 1980.

	b.  He served in Germany from 2 April 1981 to 24 March 1983.

	c.  On 4 August 1982, he accepted nonjudicial punishment under Article 15 for driving a vehicle in access of 55 miles per hour and wrongfully and unlawfully leaving the scene of an accident.  His punishment included a reduction to E-1 and forfeiture of pay, suspended for one month. 

	d.  He was honorably discharged on 7 March 1984 for immediate reenlistment.

	e.  On 9 April 1985, his immediate commander notified him of intent to initiate separation against him in accordance with Army Regulation (AR) 635-200, (Personnel Separations – Enlisted Personnel), chapter 14-12c and d for misconduct, commission of a serious offense and abuse of illegal drugs.

	f.  On 9 April 1985, the applicant acknowledged receipt of the commander’s intent to separate him.  Subsequently, on 12 April 1985, he consulted with legal counsel and submitted a statement on his behalf.  He was advised he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.

	g.  Subsequent to the applicant’s acknowledgement, the immediate commander initiated separation action against the applicant for misconduct, commission of a serious offense, and abuse of illegal drugs.  The immediate commander stated the primary reason was the notification of a positive urine test for the use of Tetrahydrocannabinol (THC), poor performance, and lack of improvement in areas necessary to be considered for retention in service.  The chain of command recommended approval.

	h.  On 12 July 1985, consistent with the chain of command’s recommendations, the separation authority approved his discharge under the provisions of AR 635-200, Chapter 14-12c, by reason of misconduct, commission of a serious offense, and abuse of illegal drugs.

	i.  He was discharged from active duty on 23 July 1985.  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he was discharged under the provisions of paragraph 14-12c and d of AR 635-200, due to misconduct with an under honorable conditions (general) characterization of service.  

     j.  He completed 5 years, 3 months, and 22 days of active service.  It also shows he was awarded or authorized the:

* Army Good Conduct Medal
* Army Service Ribbon
* Overseas Service Ribbon
* Sharpshooter Qualification Badge with Grenade Bar
* Expert Marksmanship Qualification with .45 Caliber Pistol

4.  By regulation, action will be taken to separate a soldier for misconduct, commission of a serious offense, and abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a soldier.

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, the Board determined that partial relief was warranted.  Based upon the misconduct, the general discharge already received and a lack of character evidence from 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.

However, the Board did note the prior honorable service completed which is not currently depicted on the DD Form 214 of the applicant.  The Board, therefore, recommended that the continuous honorable service of the applicant be added to his DD Form 214.

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 800402 to 840307.”
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, provides 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 soldier’s service generally has not 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) is a separation from the Army under honorable conditions.  When authorized, it issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include misconduct, commission of a serious military offense, and abuse of illegal drugs.  Action will be taken to separate a member for commission of a serious offense, illegal drug abuse.  Upon discovery, those in pay grades below E-5 will be processed for first time drug offense.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.

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 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.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20170004732


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