ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20170008489


APPLICANT REQUESTS:  an upgrade of his under honorable conditions discharge to general under honorable conditions.

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 that it has been more than 30 years since his discharge.  He would like to seek Veterans Affairs benefits with an upgrade according to the applicant.  He states that he was young back then and made a correctable error 

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 21 February 1984.

	b.  On 18 March 1985, he received non-judicial punishment under Article 15 for failure to report to an appointed place of duty on or about 15 March 1985.  His punishment included 7 days if extra duty from 18 March 1985 to 24 March 1985.

	c.  On 12 March 1985, a DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on the applicant.  On 29 April 1985 applicant was counseled (DA Form 4856-R that a bar to reenlistment was in effect based on him being positive for drug urinalysis and alcohol abuse.  He was a self-referral to the Drug and Alcohol Abuse Program in December 1984.  He was positive for THC twice, once in December 1984 and again in January 1985.  As a result of the urinalysis testing and based on his blatant disrespect for the federal law, Army regulations and status as a Soldier, a Bar-To-Reenlistment was administered by his command authority.
	d.  On 14 March 1985, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of Chapter 14, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations) for commission of a serious offense (a positive urinalysis).

	e.  On 18 March 1985, after consulting with legal counsel, he 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 be ineligible for many or all benefits as a veteran under both Federal and State laws
* 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

	f.  On 14 March 1985,the commander initiated separation action against the applicant in accordance with AR 635-200 due to positive urinalysis.

	g.  On 14 March 1985, the applicant’s chain of command’s proposed recommendations, to the separation authority for a discharge of the applicant under the provisions of chapter 10, AR 635-200 for the good of the service

	h.  On 24 June 1985, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for the commission of a serious offense, abuse of illegal drugs with an under honorable conditions (General) characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 4 months and 4 days of active service.  It also shows he was awarded or authorized:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

4.  By regulation, misconduct includes minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  An under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct.

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 reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant requested a general, under honorable conditions discharge on his DD Form 149.  His record shows he already possesses a general discharge.  The Board considered his record for an upgrade to honorable as it is possible that was what he intended to request.  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 short term of service completed prior to a pattern of misconduct, 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.



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 3-7a (Honorable discharge) states 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 (General discharge) states 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.

	c.  Chapter 14 of this regulation provides that Soldiers are subject to separation 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.  Members against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated will be processed for separation.  Abuse of illegal drugs is serious misconduct.

	a.  Paragraph 12c describes the commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Court Martial. An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. 

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)	 AR20170008489


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