ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170017884 APPLICANT REQUESTS: an upgrade of his under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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’s service record shows: a. He enlisted in the Regular Army on 25 August 1983. b. He accepted nonjudicial punishment on 4 January 1989 for wrongful use of marijuana, a controlled substance. He was fined $521 per month for two months (suspended), reduced to the grade of E-4, and 30 days extra duty. c. On 12 January 1989, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (2), in effect at the time, for misconduct, commission of a serious offense for abuse of illegal drugs. d. On 12 January 1989, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and waived his right to submit statements on his own behalf. e. He was advised that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him f. Subsequent to the applicant’s acknowledgment, the immediate commander initiated separation action against him for misconduct. The chain of command recommended approval. g. Consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-12c (2) by reason of misconduct, commission of a serious offense, abuse of illegal drugs on 27 January 1989. h. He was discharged from active duty on 1 February 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 5 years, 5 months, and 7 days of active service. It also shows he was awarded or authorized: * Army Commendation Medal * Army Achievement Medal with 1 Oak Leaf Cluster * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon 3. By regulation, action will be taken to separate a soldier for misconduct when commission of a serious military or civil offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under AR 635-200, Chapter 14-2c. 4. 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 there is insufficient evidence to grant relief. The applicant’s contentions 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 did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable distinction 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 characterization would be clearly in appropriate. b. Paragraph 3-7b (General Discharge) states 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. c. Chapter 14, 12c (2) of this regulation provides procedures for separating personnel for misconduct because of the abuse of illegal drugs. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017884 3 1