ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 June 2019 DOCKET NUMBER: AR20170005865 APPLICANT REQUESTS: an upgrade of his under honorable conditions characterization 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: a. He was told by his commanding officer that his discharge would be upgraded to honorable after leaving Germany. However, it’s been over 25 years and he never received the upgrade. He believes he was a good Soldier and this was quite unfair. He did nothing to warrant the reason for separation as unsatisfactory performance. b. He was accused of smoking hash with sever people in town by an unknown informant. He was never charged, rehabbed or anything. He says that 3 weeks later he was notified of this discharge and sent home. He was very disappointed. He feels that he was falsely accused of something he did not do and there was no drug test, no evidence nor rehab. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 9 June 1981. b. He served overseas in Germany from 30 December 1983 until 12 March 1984. c. On 17 February 1984 he was suspected of wrongful possession and use of marijuana and agreed to be interviewed by an investigator with the military police and signed a sworn statement regarding the events leading up to his investigation. d. On 27 February 1984, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of chapter 13 of Army Regulations (AR) 635-200 (Personnel Separations-Enlisted Separations) for unsatisfactory performance and specifically, possession or use of a controlled substance. The commander advised him of his rights to counsel, and provided him an opportunity to submit statements on his behalf. e. He acknowledged the letter of notification from his commander by signing it. He also submitted a written statement in response to the chapter 13 action against him. f. On 27 February 1984, the applicant was recommended for separation under the provisions of AR 635-200, chapter 13, unsatisfactory performance, by his commander. The separation authority approved his separation on 1 March 1984, and directed the applicant to receive a general, under honorable conditions character of service discharge. g. The applicant was discharged on 13 March 1984, under the provisions of AR 635-200, chapter 13, paragraph 13-2a, unsatisfactory performance, and issued a general, under honorable conditions discharge characterization. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows that he completed 2 years, 9 months, and 5 days of active service with no lost time. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Army Service Ribbon 4. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 13, when he or she is unqualified for further military service because of unsatisfactory performance. An honorable or under honorable conditions (general) discharge was an appropriate and authorized characterization of service. 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 review of the application and all evidence, to include the DoD guidance on liberal consideration, the Board determined there is sufficient evidence to grant partial relief. Based upon the number of years of honorable service completed prior to the misconduct, the absence of other recorded misconduct and the absence of records showing his unit provided rehabilitative actions that failed, the Board concluded that there was an injustice which would warrant granting clemency by upgrading the applicant’s characterization of service to Honorable. 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 the applicant a DD Form 214 showing * characterization of service as “Honorable” * separation authority as “AR 635-200” * separation code as “JFF” * narrative reason for separation as “Secretarial Authority” 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 635-200 (Personnel Separations-Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 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. A characterization of under honorable conditions may be issued only when the reason for the member’s separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 13-1, of this version, in effect at the time, established policy for members that may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. d. Paragraph 13-2 says that commanders will separate a member for unsatisfactory performance when it is clearly established that: * in the commander’s judgement, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier * the seriousness of the circumstances is such that the member’s retention would have an adverse impact on military discipline, good order, and moral * it is likely that the member will be a disruptive influence in the present or future duty assignments * it is likely that the circumstances forming the basis for initiation of separations proceedings will continue or recur * the ability of the member to perform duties effectively in the future, including potential for advancement or leadership is unlikely 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 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. ABCMR Record of Proceedings (cont) AR20170005865 3 1