ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170013063 APPLICANT REQUESTS: an upgrade of his under other than honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant Statement * Diploma 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: a. He is tendering this letter as a request for reconsideration of his current general under honorable condition discharge. Approximately thirty years ago, he was discharged from active duty due to violation of the Code of Conduct surrounding drug abuse. He made one of the most egregious decisions he has ever made in his life. While on a compassionate reassignment to Fort Hamilton, NY, from Fort Polk, LA (high-risk pregnancy for his wife at the time), while intoxicated, he experimented with a street drug called 'crack cocaine.' It was devastating to say the least and like thousands of others he was addicted instantaneously. b. In less than two days, with the drug in his system; he was selected for a random urine-analysis. To date, he often thinks of those sequences of events because he was not the only Soldier present that ill-fated evening. Nonetheless, he engaged in an act of personal attrition, severely weakening the perception of his character and resolve to be a good and clean Soldier. He was a good Soldier having already received an Army Achievement Medal. c. He entered the Army with a Bachelor Degree in Sociology from Colgate University. In his opinion, it is his belief that if he had adequate treatment, the outcomes would have been vastly different. As he recall, he met with a gentleman for two sessions lasting about 25-30 minutes in duration for each session. He does not know if the gentleman was civilian or Soldier. Anyone that understands any treatment modality, knows that two sessions hardly constitute a treatment process. He do not recall if there was a second analysis. There very well could have been. In approximately thirty days he was out, only 28 days or so which would have qualified for benefits that may have saved precious years of his life. d. It appears that there was a great effort to get him out before he could receive benefits. However, he was discharged as an addicted person with nothing. Prior to going into the military, he took the New York City Police (NYPD), NY Correction, and Nassau County exams. While in the service, his name came up for both NYPD and the Department of Corrections. As you know those positions must be held. He pursued the Correction Department. He was still actively addicted. He passed the agility, background investigation and was on his way to the psychological evaluation. e. He was still getting high. He stopped in the middle of the process because he was still under the influence of drugs and alcohol. The spiral continued for about two years resulting in a child out of wedlock and a subsequent divorce. By the tender Mercy's and Grace of God, he experienced a moment of clarity followed by an epiphany; he could do nothing without God’s help or under the influence of drugs and alcohol. The assistance of the Holy Spirit in the scriptural passage of James 5:16. The effectual fervent prayer of the righteous man availed much." f. He asked God to take away the obsession and compulsion away from him, and he did. He was delivered from the vices of addiction. Today, he’s Dr. C Ed. D. The Board should find attached his resume outlining the blessing he has received because of living a drug free life for the last 30 years. . 3. The applicant provides: * A Statement detaining the events of his military career * His Doctor of Education diploma 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 27 May 1983. b. On 22 January 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specifications of substance abuse, a positive urinalysis for cocaine. His punishment consisted, in part, of reduction to E-3 suspended until 19 July 1987. c. On 25 May 1985, the company commander notified him of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12d d. The applicant consulted with legal counsel on 8 April 1985 and subsequently acknowledged the commander’s intent to separate him under the provisions of AR 635-200, chapter 14-12d. He acknowledged he may expect to encounter substantial prejudice in civilian life because of a general under honorable conditions discharge. e. The company commander’s initiation is not available for review. However on 12 April 1985, the company commander recommended the applicant be eliminated from the service under the provisions of (AR) 635-200 paragraph 14-12d, for abuse of illegal drugs. f. On 17 April 1985 the deputy commander recommend approval to separate him under the provisions of (AR) 635-200, paragraph 14-12d. The chain f command recommended approval. f. Consistent with the chain of command's recommendation, on 17 April 1985, the separation authority approved his request for discharge under the provisions of chapter 14 AR 635-200, for abuse of illegal drugs and directed his service be characterized under other than honorable conditions. g. On 26 April 1985, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, chapter 14-12d, with an under other than honorable condition characterization of service. He completed 1 year, 11 months, and 0 day of active service. He was awarded or authorized the Army Service Ribbon, Army Achievement Medal, and First class hand grenade. 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 insufficient evidence to grant relief. The applicant’s contentions and post-service achievements 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. One Board member voted to grant a general discharge based upon his post-service achievements. The majority of 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 : X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170013063 3 1