ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20170009702 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge. 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 his battalion commander announced, if anyone had a - substance abuse problem to come forward and they would get assistance. As a result of the battalion commander’s announcement, he reported his addiction. He was suddenly reduced in grade and his family returned to the United States early. With his family returned to the United States, he was required to live in the unit barracks. He states he was treated with very little respect in his unit’s barracks. His separation was approved and he was returned to the United States for discharge. He feels he was tricked into confessing to substance abuse. 3. A view of the applicant’s service record shows: a. He enlisted in the Regular Army on 28 January 1982. b. He served in Germany from 7 May 1983 to 14 June 1985. c. He accepted nonjudicial punishment (NJP) under Article 15 for: * 26 July 1984, for being disrespectful in language toward Staff Sergeant C, his superior noncommissioned officer, his punishment included suspended reduction to E-3, Suspended forfeiture of $100, and 7 days extra duty * * 31 August 1984, suspended punishment imposed: reduction to E-3 and forfeiture of $100, for dereliction of duty, violation of Article 92, Uniform Code of Military Justice * 16 January 1985, for wrongfully use of some amount of marijuana, his punishment included reduction to E-1, forfeiture of $310 per month for two months, and 45 days restriction * 19 March 1985, for failure to go to his prescribed place of duty, his punishment included forfeiture of $144.00 suspended 30 days, 14 days restriction and 14 days extra duty d. On 2 February 1985, he was barred from reenlisting. e. On 14 March 1985, the applicant’s commanding officer initiated action to separate him under the provisions of Army Regulation (AR) 635-200, (Personnel Separations - Enlisted Personnel), chapter 14-12b, for misconduct due to his continued inability to adjust his behavior and attitude toward the standards required of every Soldier. His chain of command concurred with the commander's recommendations. f. On 14 March 1985, he consulted with legal counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14. He acknowledged: * the rights available to him and the effect of waiving said rights * the right to have his case heard by an administrative separation board * the right to submit a statement in his own behalf, he did not elect * he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued * he would be ineligible to apply for enlistment in the Army for a period of two years after discharge g. On 28 May 1985, consistent with the chain of command's recommendation, the separation authority approved his discharge under the provisions of AR 635-200, chapter 14-12b (2), pattern of misconduct. He directed the issuance of under other than honorable conditions discharge. h. He was discharge don 14 June 1985. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 14-12b (2), for misconduct (drug abuse). His characterization service is under other than honorable conditions discharge. He completed 3 years, 4 months, and 17 days of active service with no lost time. It also shows he was awarded or authorized Army Service Ribbon, Overseas Service Ribbon, Good Conduct Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16). a. 4. By regulation, (AR 635-200), action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable to rehabilitation (as indicated by the medical or personal history). 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 review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. Based upon the pattern of misconduct, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his separation, the Board concluded that there was insufficient evidence to show that there was an error or injustice which would warrant making a change to the characterization of service. 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. 6/18/2019 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) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a, (Honorable) a honorable characterization 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 other characterization would be clearly inappropriate. b. Paragraph 3-7b, (General) provides that 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to Soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty. c. Paragraph 14, establishes 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. Action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history. d. Paragraph 14-12b (2), (Pattern of Misconduct) says that Soldiers are subject to separation per this section for conduct prejudicial to good order and discipline includes: conduct violate 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 . e. Paragraph 14-2c (2) Abuse of illegal drugs is serious misconduct. 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 1. 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.