ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20170014544 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 (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 was an “A-1 Soldier. The unit had no Sergeant First Class/E-7 and one of his Staff Sergeant/E-6 went absent without leave. A demented E-7 from Vietnam fired all Artillery Surveyors, (82C) from the unit. His E-7 was insane. Although he does not have any documents, but he was a fine Soldier. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 7 February 1984. b. He accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, on the following two occasions: * 21 January 1985 for wrongfully using a controlled substance, to wit: marijuana and was reduced in rank to private/E-2 * 8 April 1985 for wrongfully possessing some amount of a controlled substance, to wit: marijuana and was reduced in rank to private/E-1 c. 8 April 1985, the applicant was placed in the Correctional Custody Facility (CCF) for 21 days in hopes of rehabilitation and was counseled daily while in attendance. On 26 April 1985, he was sent back to his unit for drinking. d. On 9 May 1985, the applicant's commander notified him of his intent to initiate action to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, for serious misconduct. e. The applicant acknowledged receipt and consulted with counsel. Following consultation with legal counsel, he understood his rights and acknowledged the following: * he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected not to submit a statement on his own behalf f. His immediate and intermediate commanders recommended approval of his chapter 14 discharge with the issuance of an under other than honorable conditions discharge. g. Consistent with the chain of command's recommendation, the separation authority approved his discharge on 4 June 1985, under the provisions of AR 635- 200, Chapter 14, and directed the issuance of an under other than honorable conditions discharge. h. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 11 June 1985, under the provisions of AR 635-200, chapter 14-12b and given a characterization of under other than honorable conditions discharge. It also shows he had 1 year, 4 months and 2 days of net active service with no lost time. 4. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. By regulation, AR 635-200, Chapter 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 6. The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance for consideration of discharge upgrade requests, the Board determined that relief was not warranted. The Board considered the applicant's statement, the short term of honorable service completed prior to a pattern of misconduct involving drug use and the absence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board concluded that there was insufficient evidence of 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. 10/25/2019 X CHAIRPERSON 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 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) provides that 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. b. Paragraph 3-7b (General) 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. 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. c. Chapter 14 (Separation For Misconduct) of this regulation 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. d. Paragraph 14-12b (pattern of misconduct) consisting of: * discreditable involvement with civil or military authorities * conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and-time-honored' customs and traditions of the Army 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