ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


			   IN THE CASE OF:  
	BOARD DATE:     9 April 2019

	DOCKET NUMBER:  AR20170006832


APPLICANT REQUESTS:  in effect, upgrade his general discharge under honorable conditions 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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  Claims Incident Thereto).  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, in effect, he is requesting this correction because of the length of time he has been out of the service; he was told he could have his character of service reviewed.

3.  The applicant's service records show:

	a.  He enlisted into the Regular Army on 27 March 1985.  Following initial training, he was assigned to Fort Ord, CA, arriving on or about 9 September 1985.

	b.  On 21 October 1987, the applicant sold a U.S. Army Criminal Investigation (CID) special agent (SA) a packet of purported cocaine; on 7 December 1987, a CID laboratory confirmed the substance was cocaine.  On 13 January 1988, CID apprehended and interviewed the applicant; during the interview, the applicant admitted to purchasing and using cocaine, marijuana, and LSD (Lysergic Acid Diethylamide) on numerous occasions.  He also admitted to getting drugs for the CID SA on a one-time basis after the SA gave him the money.  He declined to sign a sworn statement affirming his admissions.

	c.  On 17 March 1988, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) by wrongfully using and distributing cocaine; and wrongfully using and possessing LSD and marijuana.

	d.  On 12 April 1988, the applicant's commander notified him of his intent to separate the applicant under the provisions of paragraph 14-12c(2) (Acts or Patterns of Misconduct – Commission of a Serious Offense – Abuse of Illegal Drugs), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  His basis for this action was the applicant's wrongful possession, use, and distribution of cocaine; wrongful use and possession of LSD; and wrongful possession and use of marijuana.

	e.  Also on 12 April 1988, the applicant consulted with counsel and acknowledged counsel had advised him of the basis for, and the effects of the separation action; counsel also informed him of his rights and the impact of waiving those rights.  The applicant elected not to make a statement in his own behalf.

	f.  On 18 April 1988, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 29 April 1988, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he was awarded or authorized the Army Good Conduct Medal (1st Award), Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  Per AR 635-200, commanders were to consider for elimination from military service those Soldiers who abused illegal drugs.  Commanders could separate first-time offenders in grades E1 through E4 when there was no intent to refer the Soldier to a court-martial empowered to adjudge a punitive discharge, and when the commander deemed such a separation appropriate.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board determined that relief was not warranted.  Based upon the misconduct resulting in the discharge and, in the Board’s opinion, the applicant providing an insufficient basis for upgrading the discharge characterization, the Board found that the characterization of service given at the time of discharge was appropriate.  

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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance.

	b.  Paragraph 3-7b (General Discharge).  A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 14-12c(2) applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge.  The regulation considered the abuse of illegal drugs as serious misconduct.  Commanders could separate first-time offenders in grades E1 through E4 when there was no intent to refer the Soldier to a court-martial empowered to adjudge a punitive discharge, and when the commander deemed such a separation as appropriate.  

3.  The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included both the dishonorable and bad conduct discharge as punishments.

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 on the basis of 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)	 AR20170006832


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