ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2019 DOCKET NUMBER: AR20170008045 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from counsel * Self-authored letter * Certificates, requests, and approvals for various awards and actions * Urinalysis documents * Letters of support for retention during applicant’s discharge proceedings * Career profile and additional certifications * Administrative elimination board documents and proceedings 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 (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 that he never denied using the marijuana and was punished by the Article 15 he received. He always believed that he would be given a second chance. He never dreamed that one positive urinalysis incident would result in his being separated from the United States Army. He was never offered rehabilitation for a first and only offense, and he remained on active duty for almost a year before being administratively separated from active military service. He started out with an outstanding and promising career with the United States Army. He made one mistake that he truly regrets. He has long ago paid for his mistake and has lived the last 30 years with an "Other Than Honorable Discharge" on his conscience and as his badge of shame. He has been very productive, dedicated and has excelled in all aspects of the job that he was laid off from. He has done his very best in the past 27+ years to put his life back in order, regain the respect of his peers, and achieve goals that he never thought were possible or attainable. He has been and will always be a true patriot of the war fighter, its mission and to the United States of America. This will never change. 1. All he asks is that he not be punished further for something that happened a long time ago. 3. The applicant provides: a. A letter from the applicant’s counsel that states much has changed in society since the applicant served. He made a fateful mistake in trying marijuana a single time and lost the hope of a military career. Rather than give up on his spirit of service and pursue a career away from the government, the applicant found a way to work in and around the government and built himself a successful career working as a government contractor, even earning and keeping a security clearance. b. Certificates, requests, and approvals for various awards and actions, including a certificate for an Army Commendation Medal and certificates of appreciation for duty. c. Letters in support of the applicant during his discharge proceedings. The letters state, in summary, that the applicant had superb technical expertise and is respected by his peers and that he should be able to stay in the Army despite smoking marijuana. d. Career profile and additional certifications that include the applicant’s entire Standard Form 86 (Security Clearance Questionnaire), Hazard Communication Training certificate, and certificates from his civilian employment. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 16 April 1981. He served in Germany for 1 year, 11 months, and 27 days. b. On 15 April 1986, he received nonjudicial punishment under Article 15 for wrongfully using marijuana. c. On 27 August 1986, the applicant's immediate commander notified him that a discharge action was being initiated against him for a positive urinalysis, in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The specific reason is listed as the applicant’s positive urinalysis. d. On 27 August 1986, he acknowledged receipt of the notification of the separation action. He requested to appear before a board of officers, but declined to submit a personal statement on his behalf. He requested counsel. He also acknowledged that he would be ineligible for any or all Veteran benefits as a result of the issuance of an other than honorable discharge. He also acknowledged: * the rights available to him and the effect of waiving said rights * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * * he may apply to the Army Discharge Review Board or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army for 2 years after discharge e. On 20 February 1987 an board of officers convened and found by preponderance of the evidence that the applicant had committed a serious offense, and recommended his discharge from military service and that he be issued an “other than honorable conditions discharge.” f. On 20 March 1987, the separation authority approved the board of officers' findings and recommendation and ordered the applicant discharge under the provisions of AR 635-200, Chapter 14. He would be issued an Under Other Than Honorable Conditions Discharge Certificate. g. On 3 April 1987, he was discharged from active duty under the provisions of AR 635-200, Chapter 14 for misconduct – drug abuse. His DD Form 214 shows he received a characterization of service of under other than honorable conditions. He completed 5 years, 11 months, and 18 days years of active service. It also shows he was awarded or authorized: * Overseas Service Ribbon * Army Commendation Medal * Non-Commissioned Officer Professional Development Ribbon * Good Conduct Medal * Army Service Ribbon * Driver/Mechanic Badge * Expert Rifle M-16 Qualification Badge * Expert Hand Grenade Qualification Badge 5. By regulation, members are subject to separation if a member displays a pattern of misconduct consisting of conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order, including the use of illegal drugs, and discipline includes conduct volatile of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. 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. 1. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. 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. Based upon the lengthy period of honorable service completed prior to the isolated drug offense that led to the applicant’s separation, as well as the applicant accepting responsibility for his actions and was remorseful, the Board agreed an Under Honorable Conditions (General) character of service is was warranted, as he did not meet the standards of acceptable conduct and performance of duty for Army personnel making him suitable for an Honorable characterization. Additionally, the Board noted that the applicant did have a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial 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 for the period ending 3 April 1987 showing his character of service as under honorable conditions (General). 2. The Board also determined that the applicant had a prior period of honorable service which was not currently depicted on his DD Form 214. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 16 April 1981 until 27 March 1985.” 3. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to grant relief for an Honorable character of service. 7/25/2019 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a states an honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration or the member’s age, length of service, grade and general aptitude. b. Paragraph 1-13b states that a general discharge is a separation from the Army under honorable conditions. It is issue to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 14-12c states members are subject to separation if a member displays a pattern of misconduct consisting of conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct volatile of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 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 1. might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//