ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 July 2019 DOCKET NUMBER: AR20170007132 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from X___. * Bachelor of Science Degree * Copy of his Master’s Degree Certificate 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 made a poor decision at the age of 18 to sniff cocaine for the only time in his life. In fact, that was the only time he had tried an illegal substance. He immediately regretted his actions and was sentenced to a reduction to grade of E-1, forfeiture of 2/3 pay for 3 months and 75 days confinement. A discharge was not part of his sentencing. He was to immediately return to active duty upon release from confinement; however, he was discharged against his wishes. His discharge was under honorable conditions (general). b. He used that experience as motivation to go to college and earn a Bachelor’s Degree from the University of Texas Medical Branch and a Master’s Degree from the University of Southern California. He believes enough time has passed and he has accomplished enough to show that while his actions were the result of a poor and immature decision on his part, it was indeed an isolated case and not a reflection of his character. Please consider changing his character of service to honorable. 3. The applicant provides: a. A from X___, dated 9 November 1988, for being an Honor Graduate of training. His superior performance in Physical Fitness Test, Basic Rifle Marksmanship, and Combat Skills Course, together with his demonstrated leadership, indicated a high degree of professionalism. b. A copy of his notification of trial by Special Court-Martial, he was found guilty of wrongful use of cocaine and sentenced on 25 July 1989. He was reduced to E-1, forfeiture of 466.00 for 3 months and confined for 75 days. c. He received his Bachelors of Science Degree in Health and Care Administration on 3 May 1997, from The University of Texas Medical Branch at Galveston. d. He received his Master’s Degree in Public Administration on 14 May 2004, from the University of Southern California. 4. A Review of the applicant's service records shows: a. He enlisted in the Regular Army (RA) on 2 August 1988. b. On 25 July 1989, he was convicted by Special Court-Martial of wrongful use of cocaine. His sentence included reduction to E-1, forfeiture of pay $466.00 for 3 months and confined for 75 days. c. On 31 August 1989, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separation), Chapter 14-12c, for misconduct- abuse of illegal drugs. The reason for the proposed action is that he was convicted by Special Court-Martial on 25 July 1989 of wrongful use of cocaine. d. On 6 September 1989, he was advised by counsel of the basis for the contemplated action to separate him for Chapter 14, and its effects of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he did not want to submit statements in his own behalf * he requested representation by military counsel * he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued * he understood if he received a discharge certificate/character of service which is less than honorable he could apply to the Army Discharge Review Board (ADRB) or the Army Board of Correction of Military Correction for upgrading * he understood that an act of consideration by either board does not imply that his discharge would be upgraded e. Consistent with the chain of command recommendation, on 7 September 1989, the separation authority approved the applicant’s discharge and directed he be issued a General Under Honorable Conditions Discharge. f. The applicant was discharged on 12 September 1989. His DD Form 214 shows he completed 11 months and 24 days of active service. He has lost time from 25 July 1989 to 11 September 1989. He was awarded or authorized the Army Service Ribbon. g. On 13 August 1992, the ADRB determined that the applicant was properly and equitably discharged and denied his request. 5. By regulation, separations under the provisions of AR 635-200, Chapter 14-12, provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 6. 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, the Board determined relief is not warranted. The applicant’s contentions, letters of support and post-service achievement were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. All Soldiers must be processed for separation after a second offense. b. Paragraph 3-7a (Honorable Discharge) 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. c. Paragraph 3-7b (General Discharge) a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007132 4 1