ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20170018139


APPLICANT REQUESTS:  an upgrade to his under honorable conditions, general discharge to an honorable discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* A copy of his medical records

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, in effect, he has been a productive person, who completed college and worked until he could not work anymore.  He needs an upgrade in order to obtain access to the United Services Automobile Association insurance.  

3.  The applicant provides a copy of his medical records with radiology reports.

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

	a.  Having prior service in the Army Reserve Delayed Entry Program, he enlisted in the Regular Army on 20 February 1979.  

	b. On 22 March 1993, the applicant submitted a urine same as part of the unit directed urinalysis which tested positive for cocaine.  

     c.  The criminal investigation report on 8 April 1993, disclosed that the applicant used an undetermined amount of cocaine on 20 March 1993.    

	d.  The applicant was counseled on 8 April 1983 in regards to testing positive for cocaine.  
     e.  He accepted nonjudicial punishment on 21 April 1983, for wrongful use of cocaine, a schedule controlled substance.  His punishment in part was reduction to SGT/E-5.  

     f.  On 26 April 1983, he was counseled on the initiation of Chapter 14, in accordance with Army Regulation (AR) 635-200 for positive urinalysis.  

	g.  On 26 April 1993, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of AR 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14-12c, misconduct – commission of a serious offense, positive urinalysis.  He informed him of his rights to.  He recommended a general conditions discharge.  

	h.  He underwent a medical examination on 29 April 1993, the examiner qualified him for expiration term of service/chapter.  

	i.  On 7 May 1993, he consulted with legal counsel of the basis for the contemplated action to separate him for misconduct under AR 635-200, chapter 14.  He acknowledged:

* the rights available to him and the effect of waiving said rights the right to have his case heard by an administrative separation board
* the right to submit a statement in his own behalf 
* he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued
* he would be ineligible to apply for enlistment in the Army for a period of two years after discharge
* consult with military counsel or with civilian counsel retained at his own expense 

	j.  Following the receipt of the notification, the company commander initiated the recommendation to separate him.  The applicant by memorandum, on 7 May 1983, requested a conditional waiver.  He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service or description of separation no less favorable than general.  

	k.  He underwent a psychiatric evaluation on 7 May 1983, the examiner stated that the applicant was psychiatrically cleared for any action deemed appropriate by the command and cleared for Chapter 14 proceedings.  

	l.  Consistent with the chain of command recommendations the separation authority approved the request for discharge under the provisions of AR 635-200, paragraph 
14-12c, commission of a serious offense.  He directed he be issued a general discharge certificate.

	m.  The applicant was discharged from active duty on 27 May 1993, under the provisions of AR 635-200, paragraph 14-12c for SPD JKQ – misconduct, commission of serious offense.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his characterization is under honorable conditions, general.  He completed 14 years, 3 months and 8 days of net active service this period.  He had no lost time.

5.  By regulation 635-200, paragraph 3-7b 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.  Paragraph 14-3 states that an under other than honorable conditions certificate is normally appropriate for a member discharged under this chapter.  

6.  By regulation 635-5-1 (Personnel Separations-Separation Program Designators), stating members are subject to, separation code JKQ is appropriate when the narrative reason for discharge is separation for Misconduct in a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation.

7.  In reaching its determination, the Board can consider the applicants 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 partial relief was 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.  He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.
However, the Board did note that he applicant had a period of prior honorable service which is not currently reflected on his DD Form 214 and recommended that be corrected to more accurately depict his military service.


BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 20 February 1979 to 19 March 1993.”
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.

	 
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.  AR 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable discharge) 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.

	b.  Chapter 14 -12c of that regulation provides that members are subject to separation for commission in a serious offense.  Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation.

3.  AR 635-5-1 (Personnel Separations-Separation Program Designators), states that the separation program designator (SPD) code is used in statistical accounting to represent the reason for separation.  

4.  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)	 AR20170018139


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