ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  11 June 2019

	DOCKET NUMBER:  AR20170011476


APPLICANT REQUESTS:  an upgrade of his other than honorable discharge 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 he did not realize how detrimental his choices as a young man would affect his future.  The military gave him a chance to stay during his last term but he felt like he was being targeted for his mistakes.  Instead of learning from it and moving forward he opted to be released one year earlier.  He received an Article 15 for a dirty urinalysis, lost his rank and received an other than honorable discharge which he believed to somewhat harsh.  Knowing what he knows today, he would have opted to learn from his mistakes and finish his term.  He is requesting an upgrade to receive his benefits.

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

a.  He enlisted in the Regular Army on 22 October 1982.

b. He accepted nonjudicial punishment on/for:

* 6 June 1984 for wrongful use marijuana his punishment included reduction to E-2, forfeiture of $155.00 for one month, 14 days extra duty and 14 days restriction 
* 13 August 1984 for wrongful use of THC (marijuana) his punishment included reduction to E-1, forfeiture of $298.00 for two months, 45 days extra duty and 45 days restriction

	c.  On 21 August 1984, his immediate commander notified he applicant that he was initiating a separation action against him under the provisions (UP) of Army Regulation (AR) 635-200, paragraph 14-12c (Commission of a Serious Offense/Abuse of Illegal Drugs).

	d.  On 21 August 1984, he acknowledged receipt of the immediate commander’s decision to recommend him for separation.  He consulted with legal counsel and was advised the basis for the contemplated action to separate him for commission of a serious offense.  He acknowledged:

* he waived of his right to have his case considered by an administrative separation board
* he waived his personal appearance before an administrative separation board
* he acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he also understands that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he realizes that consideration by either board does not imply that his characterization of service (discharge) would be upgraded

	e.  On 15 October 1984, consistent with the chain of command recommendations, the approval authority approved the separation UP the provision of AR 635-200, 12-c, and issued an Under Other than Honorable Conditions Discharge Certificate.

      f.  The applicant was discharged from active duty on 25 October 1984.  His DD 
Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c with a under other than honorable conditions characterization of service.  He completed 2 years and 3 days of active service and has lost time from 24 September to 24 September 1984.  It also shows he was awarded Army Service Ribbon, Expert Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) and Hand Grenade (1st Class)

4.  By regulation, separations under the provisions of AR 635-200, chapter 14 provides 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.

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 sufficient 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.  The Board agreed the characterization for the misconduct was severe; however, the misconduct does not warrant an upgrade to an honorable discharge.  The Board agreed to grant clemency in the form of an under honorable conditions characterization.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
	 
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 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. First time drug offenders in the grade of sergeant and above, and all Soldiers with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense.

	b.  Paragraph 3-7a (Honorable Discharge) 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.

	c.  Paragraph 3-7b (General Discharge) 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.

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.


ABCMR Record of Proceedings (cont)	 AR20170011476


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