ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170010512 APPLICANT REQUESTS: * an upgrade of his general discharge to an honorable discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * three Letters of Commendation * three Letters of Appreciation * Certificate of Training 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 he never did drugs during his military service and he currently does not do drugs. While in the military, he received a nonjudicial punishment for possession of less than 1 ounce because he was in the car with someone who had the drugs in their car. Since the individual did not speak up, they all were charged with possession. This has followed him all of his life. He is 60 years of age and would like a fresh start on life with a clean record for his time in the military and serving his country. He would like to have peace of mind before anything happens. He is providing documentation showing the support of his command and he was a super Soldier. He is currently 50 percent disabled with a ruptured disk and other health conditions. At 60 years of age, he believes if someone considers the evidence he provides, they would reopen his case and grant his petition for a change of his discharge to honorable. 3. The applicant provides copies of the following: * Letter of Commendation for his selection as supernumerary during the Command Sergeant Major’s inspection on 19 January 1980 * Letter of Commendation, dated 15 April 1980, for his fine performance while serving on the Ammunition Supply Point on 8 April 1980 * Letter of Appreciation, dated 21 April 1980, for his fine performance as the Tool Coordinator during the Exercise Winter Raider * Letter of Appreciation for his outstanding performance of duties rendered as a supply clerk * Letter of Commendation, dated 27 May 1980, for his fine performance while serving on the Ammunition Supply Point Guard on 19 May 1980 * Basic Leadership Course training completion certificate, dated 20 November 1981 * Letter of Appreciation, dated 20 October 1982, for his performance in the Brigade Commander’s Cup Competition held on 25 September 1982 4. Counsel defers requests and statements to the applicant and provides no additional evidence. 5. Review of the applicant’s military record shows: a. He enlisted in the Regular Army on 1 September 1981. He held military occupational specialties 54D (Chemical Equipment Repairman) and 63J (Quartermaster and Chemical Equipment Repairman). He served in Germany from 13 July 1980 to 3 March 1982. b. On 20 August 1982, he was issued a Letter of Reprimand for possessing stolen Government property. The letter advised him that as a Specialist in the Army, he was expected to set an example for his subordinates in the Army. c. He was promoted to pay grade E-5 on 13 October 1982. d. In February 1984, he received counseling for a positive urinalysis result on 23 February 1984 and initiation of separation action under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). e. A DA Form 2800 (Criminal Investigation Division – Report of Investigation), dated 4 May 1984, shows the applicant and four other persons (including his wife) were arrested for possession of cocaine and marijuana in Petersburgh, VA on 13 March 1983. His record is void of the final outcome of his arrest. f. On 24 July 1984, the applicant’s immediate commander advised the applicant of the initiation of action to separate him from the Army under the provision of chapter 14, AR 635-200, for Misconduct – Abuse of Illegal Drugs. The commander stated the reasons for the applicant’s elimination were a positive urinalysis and his arrest in Petersburgh, VA on 13 March 1984 for the possession of cocaine and marijuana. He advised the applicant of his rights. g. On 26 July 1984, a bar to reenlistment was approved against the applicant for a positive urinalysis result and his arrest for possession of cocaine and marijuana. h. On 2 August 1984, after consulting with counsel, he acknowledged the basis for the contemplated action to accomplish his separation for misconduct – drug abuse under the provisions of chapter 14, AR 635-200, its effects, the right available to him, and the effect of any action taken by waiving his rights. He request consideration of his case by an administrative separation board and personal appearance before such board. He also acknowledged: * he could request consideration of his case by a board of officers and submit a statement in his behalf * he could encounter substantial prejudice in civilian life if general discharge or an under other than honorable conditions discharge was issued * he would be ineligible to apply for enlistment in the Army for a period of 2 years after his discharge i. In his statement, dated 3 August 1984, the applicant stated he had been in the Army since September 1978 and had served at Fort Polk, LA; in Germany; and now at Fort Lee, VA, since March 1982. He was married and had 2 young children. His wife was a Specialist Four and she just changed duty stations to Germany. Due to a urinalysis test and an erroneous arrest in Petersburg, the government had initiated a discharge action against him. He was not provided the opportunity to present his case to a board of officers. It was improper and unfair to hold against him or use in any manner the fact that he was arrested; he was innocent of any wrongdoing, a victim of being in the wrong place at the wrong time. He would not jeopardize his and his wife’s careers with involvement in drugs and they did not use them. He contests the validity and accuracy of the marijuana usage which was supposedly identified through urinalysis; he did not use marijuana as alleged and denied any such allegations. He requested to be allowed to present his case before a board of officers and to remain in the Army. j. On 9 August 1984, the applicant’s immediate commander recommended the applicant be eliminated from the Army under the provisions of paragraph 14-12d(1), AR 635-200. k. On 10 August 1984, the applicant’s battalion commander strongly recommended approval of the applicant’s discharge. He stated the applicant had violated the special trust and confidence the Army had placed in him as a noncommissioned officer. l. On 17 August 1984, the staff judge advocates (SJA) reviewed the file and found it to be legally sufficient to separate the applicant. The SJA opined: * because the notice to the applicant provides only the rights available under notification procedure, rather than under administrative board procedure, a discharge under other than honorable conditions is not authorized in this case * the applicant has less than six years total active and/or reserve military service; therefore, he is not entitled to have his case considered by a board of officers m. On 22 August 1984, the separation authority approved the applicant’s discharge under paragraph 14-12, AR 635-200 and directed the issuance of a General Discharge Certificate. n. He was discharged from active duty, in pay grade E-5, on 29 August 1984, accordingly. He completed 2 years, 11 months, and 29 days of net active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded/authorized the Overseas Service Ribbon and Army Good Conduct Medal. 6. By regulation (AR 635-200), members are subject to separation for commission of a serious offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized. 7. 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. 8. By regulation (AR 15-185), applicant do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board considered his record of service, letters of commendation and appreciation, the frequency and nature of the misconduct, a bar to reenlistment, the reason for his separation and his statement at the time. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board found insufficient evidence of in-service mitigation and the applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of clemency. Based upon a preponderance of evidence and the misconduct listed, the Board concluded that there was no 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. X 7/8/2019 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and or conviction by civil authority. The regulation stated in: a. Paragraph 3-7a (Honorable Discharge) – an honorable discharge was a separation with honor. The honorable characterization was appropriate .when the quality of the Soldier's service generally had met, the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 14-12d – for abuse of illegal drugs, the immediate and intermediate commanders would recommend separation or retention. They would not recommend the type of discharge certificate to be awarded. Abuse of illegal drugs was serious misconduct, separation action normally would be based, upon commission of a. serious- offense. However, relevant facts could mitigate the nature of the offense. Therefore a single drug abuse, offense maybe combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. The separation, reason for all separations authorized by this paragraph would be "misconduct- abuse of illegal drugs. For first-time drug offenders, grades E-5 to E9, would be processed for separation upon discovery of a drug offense, and second time drug offenders, grades E-1 to E-9, all members must be processed for separation after a second offense. Other personnel first time offenders, grades E-1 to E-4, could be processed for separation as appropriate. Processed for separation meant that separation action would be initiated and processed through the chain of command to the separation authority for appropriate action. The immediate and intermediate commanders would recommend separation or retention. 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. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//