ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170005340 APPLICANT REQUESTS: * an upgrade to his under honorable conditions (general) discharge * an appearance before the Board 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 in a small room in an apartment off base with some people he met and they eventually started to smoke marijuana. He did not participate in smoking marijuana, but was subjected to the second hand smoke. He had a good period of service and should not have received a under honorable conditions (general) discharge. 3. A review of the applicant’s service record shows: a. Having had prior service in the Army Reserves Delayed Entry Program, he enlisted in the Regular Army on 27 August 1982. b. On 11 January 1985, the results of biochemical testing showed that the applicant was tested on 4 December 1984 and he had a positive urinalysis for the substance of tetrahydrocannabinol (THC). c. The applicant’s immediate commander advised him on 30 January 1985 of his intent to recommend him for administrative separation from the Army under the provision of paragraph 14-12d, Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel), for the 4 December 1984 urinalysis, which resulted in a positive a. reading for THC. He further advised him that he had the right to consult with legal counsel and the right to present his case before a board of officers, if he had 6 years or more of service. d. After consulting with legal counsel of the basis for the contemplated action to accomplish separation for drug abuse under the provisions of chapter 14, AR 635-200 and its effects, the right available to him, and the effect of any action taken by waiving his rights. He acknowledged: * the right to submit a statement on his own behalf, he elected to submit a statement within 7 days, his service records are void of the statement * he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued * he would be ineligible to apply for enlistment in the Army for a period of two years after discharge e. On 11 February 1985, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-200, paragraph 14-12d for the commission of a serious offense, misconduct – drug abuse. f. Consistent with the chain of command recommendations on 20 March 1985, the separation authority approved the request for discharge under the provisions of AR 635-200, paragraph 14-12d for the commission of a serious offense, misconduct – drug abuse. He directed he be issued a General, Under Honorable Conditions Discharge Certificate. g. The applicant underwent a mental and medical evaluation on 1 April 1985, the examiner stated that he was qualified for chapter 14 and he had the mental capacity to understand and participate in the proceedings. h. The applicant was discharged from active duty on 8 April 1985 under the provisions of AR 635-200, paragraph 14-12d for the commission of a serious offense, misconduct – drug abuse, SPD: JKK. His DD Form 214(Certificate of Release or Discharge from Active Duty) shows he completed 2 years and 7 months and 8 days of active service this period. 3. By regulation 635-200, paragraph 3-7b 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. 4. By regulation 635-5-1, Separation Program Designators (SPD), members are subject to, separation code appropriate when the narrative reason for discharge is separation for Misconduct in a serious offense. Commission of a serious military or civil offense, if 3. the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 6. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found the relief was warranted. The Board did not accept his contention of testing positive for marijuana after breathing in side stream smoke as that has been disproven by medical officials. However, the Board agreed to provide clemency and upgrade his characterization to Honorable as there is no evidence his command referred him to substance abuse rehabilitation prior to separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 showing his characterization of service as Honorable. 6/3/2019 X CHAIRPERSON Signed by: 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, establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, - commission of a serious offense, and or conviction by civil authority. 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 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. Chapter 14 -12c (Commission of a Serious Offense) of that regulation provides that members 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. c. Paragraph 14-12d, states for abuse of illegal drugs, the immediate and intermediate commanders will recommend separation or retention. They will -not recommend the type of discharge certificate to be awarded. Abuse of illegal drugs is serious misconduct, separation action normally will be based, upon commission of a. serious- offense. However, relevant facts may mitigate the nature of the offense. Therefore a single drug abuse, offense maybe combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. The separation, reason for all separations authorized by this paragraph will be "misconduct- abuse of illegal drugs. It further states that for first-time drug offenders, grades E5 to E9 will be processed for separation upon discovery of a drug offense, and second time drug offenders, grades El - E9 all members must be processed for separation after a second offense. Other personnel first time offenders, grades E1-E4, may be processed for separation as appropriate. Processed for separation means that separation action will be initiated and processed through the chain of command to the separation- authority for appropriate action. The immediate and intermediate commanders will recommend separation or retention. 3. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not 1. 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 ABCMR may grant a formal hearing whenever justice requires. 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 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. //NOTHING FOLLOWS//