ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 October 2019 DOCKET NUMBER: AR20170015475 APPLICANT REQUESTS: an upgrade to his general, under honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Statement from former spouse 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 not afforded adequate counseling concerning what options that he may have had. He was told that just getting out was his only option. His ex-wife put pot in the brownies without his knowledge and he did not want for her to get into trouble. 3. The applicant provides: a. A self-authored statement that outlines, in detail, the event that lead to his separation from the service. He was surprised to find out that he failed the urine test and later found out that out of her desire to help him, his wife put marijuana in the home made brownies without his knowledge. He admitted the wrong doing to keep his wife out of trouble and he now wishes to be recognized as the true and real soldier that he actually was. He is asking that the Board reconsiders upgrading his discharge to an honorable. b. A statement from his ex-wife where she explains the reasons for her actions that lead to the applicant being discharged from the service. She says that upon returning from overseas, the applicant was having nightmares, night terrors, waking up at all hours of the night thinking he was still in Desert Storm and overall having a very difficult time readjusting to being home. She felt helpless and did not know what to do and in an effort to help him, she baked some brownies with marijuana and unbeknownst to the applicant, he ate them. He later came up positive for the urinalysis that was given and she had to confess to what she had done. She says that her actions were the reason that the applicant’s military career came to an end and feels that he deserves his right and true discharge. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 17 November 1989. b. He served overseas in Southwest Arabia from 23 October 1990 until 13 April 1991. c. On 16 March 1992, he accepted non-judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using some amount of marijuana on or between 31 December 1991 and 29 January 1992. d. On 14 May 1992, 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 14-12c, for serious misconduct Specifically for wrongful use of a controlled substance (marijuana) and assaulting his wife on 8 March 1982. 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 to submit a statement of rebuttal on his own behalf * he also received support from fellow Soldier’s that submitted their rebuttal statements f. The applicant’s commanding officer initiated action to separation him under the provisions of AR 635-200, chapter 14, paragraph 14-12c, commission of a serious offense, and recommended the issuance of general, under honorable conditions discharge. His chain of command concurred with the commanders recommendations. g. Consistent with the chain of command's recommendation, on 4 June 1982 the separation authority approved his discharge under the provisions of AR 635-200, chapter 14-12c, and directed the issuance of a general, under honorable conditions discharge. h. His DD Form 214 shows he was discharged on 30 June 1992, under the provisions of AR 635-200, chapter 14-12c, commission of a serious offense, and given a characterization of general, under honorable conditions, discharge. i. It also shows he had 2 years, 7 months, and 14 days of active service with no lost time. 5. On 5 June 1996, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 6. By regulation, (AR 635-200), Soldiers are subject to separation per this section for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense un the manual for courts-martial. 7. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letter of support was 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 evidence of post-service achievements for the Board to consider. Based upon the offense of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, 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 : : : 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 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), in effect at the time, sets 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 soldier'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) provides that 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. A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Paragraph 14-1 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, and conviction by civil authorities. d. Paragraph 14-2 says that action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history. e. Paragraph 14-12c , Paragraph 14-12c (Commission of a Serious Offense), says that Soldiers are subject to separation per this section for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense un the manual for courts-martial. 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) AR20170015475 4 1