ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170013173


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

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 is hoping to change under honorable conditions to honorable 
discharge.  He was a young man missing his family.  He tried coping with marijuana but 
has been a productive member of society since.  He is drug free and no criminal record.  
He is a father and husband and has been a productive citizen of the United States with 
no problems.

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

	a.  He enlisted in the Regular Army on 24 September 1986.

	b.  He accepted non-judicial punishment on/for:

*	12 November 1987, wrongful use of marijuana, he was reduced to private/E-1
*	2 February 1988, wrongful use of marijuana

	c.  On 12 February 1988, the applicant’s unit commander, notified the applicant that 
under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations-
Enlisted Personnel) chapter 14 (Separation for Misconduct), he was being initiated for 
separation from the service for misconduct (abuse of illegal drugs), and advised him of 
his rights.

	d.  On 17 February 1988, he consulted with counsel and acknowledged the 
following:

*	been advised of the basis for the contemplated action to separate him for 
misconduct (abuse of illegal drugs) under the provisions of AR 635-200, 
Chapter 14, and its effect; of the rights available to him; and the effect of any 
action taken by him in waiving his rights
*	statement on his behalf was not submitted
*	understood that he may expect to encounter substantial prejudice in civilian 
life if a general discharge under honorable conditions is issued to him
*	understood that if he received a discharge certificate/character of service 
which is less than honorable, he may apply to the Army Discharge Review 
Board or the Army Board for Correction of Military Records for upgrading
*	understood that he will be ineligible to apply for enlistment in the United 
States Army for a period of two years after discharge

	e.  On 24 February 1988 and 2 March 1988, his chain of command concurred with 
the recommended action and that he receive a general discharge.

	f.  On 11 March 1988, the separation authority approved the separation action and 
directed a general discharge UP of AR 635-200 chapter 14.

	g.  On 23 March 1988, he was discharged under honorable conditions for 
misconduct (abuse of illegal drugs) UP of AR 635-200 paragraph 14-12c (commission 
of a serious offense).  He completed 1 year, 5 months, and 30 days of active service.  
He was awarded the Army Service Ribbon, Army Lapel Button, Sharpshooter 
Qualification Badge (M-16), and Marksmanship Qualification Badge (Hand Grenade).

4.  By regulation, AR 635-200, chapter 14 deals with separation for various types of 
misconduct, which includes drug abuse, and states that individuals identified as drug 
abusers may be separated prior to their normal expiration of term of service. The 
regulation in effect at the time stated individuals in pay grades E-5 and above could be 
processed for separation upon discovery of a drug offense.  Those in pay grades below 
E-5 could also be processed after a first drug offense and must have been processed 
for separation after a second offense.  The issuance of a discharge under other than 
honorable conditions was normally considered appropriate.

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 relief is not 
warranted.  The applicant’s contentions 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.  He did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  Based upon the record of misconduct and the applicant already receiving a 
general discharge, the Board concluded there was not an error or injustice which would 
warrant making a change to the applicant’s 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.
	  
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) sets forth the 
basic authority for the separation of enlisted personnel.  Chapter 14 (Separation for 
Misconduct) deals with separation for various types of misconduct, which includes drug 
abuse, and states that individuals identified as drug abusers may be separated prior to 
their normal expiration of term of service. The regulation in effect at the time stated 
individuals in pay grades E-5 and above could be processed for separation upon 
discovery of a drug offense.  Those in pay grades below E-5 could also be processed 
after a first drug offense and must have been processed for separation after a second 
offense.  The issuance of a discharge under other than honorable conditions was 
normally considered appropriate.

	a.  Paragraph 3-7a(1) 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.  Only the honorable characterization may be awarded a member 
upon completion of his or her period of enlistment or period for which called or ordered 
to active duty or active duty for training, or where required under specific reasons for 
separation, unless an entry level status separation (uncharacterized) is warranted.

	b.  Paragraph 3-7b(1) 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.  Paragraph 3-7b(2) states a characterization of under honorable conditions may 
be issued only when the reason for the member's separation specifically allows such 
characterization.  It will not be issued to members upon separation at expiration of their 
period of enlistment, military service obligation, or period for which called or ordered to 
active duty.

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. Army Regulation (AR) 635-200, in effect 
at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170013173

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