ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2019 DOCKET NUMBER: AR20170018188 APPLICANT REQUESTS: Reconsideration of his previous request for an upgrade of 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110023904 on 29 May 2012. 2. The applicant states he was told by his superior to use drugs with him and records will show that he served years and had no drug use at all. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 9 April 1986. On 26 October 1988, he was honorably discharged for immediate reenlistment. He reenlisted on 27 October 1988. b. On 6 December 1990, he accepted non-judicial punishment (NJP) for assault (striking his spouse in the face with his fist). His punishment included reduction to private first class (PFC)/E-3 (suspended until 6 May 1991), forfeiture of $200 (suspended), and 14 days extra duty and restriction. c. On 25 March 1991, he accepted NJP for being absent without leave (missed formation) on 25 March 1991. His suspended punishment from NJP on 6 December 1990 was vacated. He was reduced to PFC and forfeiture of $200. d. On 15 May 1991, he accepted NJP for wrongful use of controlled substance (cocaine). His punishment included reduction to private two/E-2, forfeiture of $422 per month for 2 months (suspended for 180 days), 45 days restriction (suspended for 180 days), and 45 days extra duty. e. On 30 July 1991, he was notified of his pending separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations–Enlisted Personnel), paragraph 14-12c, for misconduct (commission of a serious offense (cocaine use)). f. On 30 July 1991, he signed acknowledgement of the following: * afforded the opportunity to consult with appointed counsel for consultation; or military counsel of his own choosing, if he is reasonably available; or civilian counsel, at his own expense * been advised of the basis for the contemplated action to separate him for the commission of a serious offense 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 * consideration of his case by an administrative separation board; he waived personal appearance before an administrative separation board * statement on his own behalf are submitted herewith (Record is void of statement) * 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 as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a Veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life * understood that if he receives a discharge certificate/character of service which is less than honorable, he applies to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realizes that an act of consideration by either board does not imply that my discharge will be upgraded g. On 6 August 1991, his immediate commander recommended he be separated from the Army under the provisions of AR 635-200, paragraph 14-12c for commission of a serious offense (cocaine use). His chain of command recommended approval with the issuance of an under other than honorable conditions characterization of service. h. On 16 September 1991, the separation authority directed the applicant be discharged UP of AR 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense(cocaine use)) and directed the issuance of a discharge under other than honorable conditions. i. On 24 September 1991, he was discharged UP of AR 635-200 chapter 14, paragraph 14-12c for misconduct – abuse of illegal drugs. He was issued an under other than honorable conditions discharge. 4. He previously petitioned this Board for an upgrade of his discharge. However, on 31 May 2012, the Board denied his request. 5. By regulation, members are subject to separation per this section for commission of a serious offense 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 under the manual for court martial. 6. 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the pattern of misconduct, some involving violent behavior, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 5/8/2019 X Sean O'Brien CHAIRPERSON Signed by: OBRIEN.SEAN.P.1230553501 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, sets forth the basic authority for separation of enlisted personnel. a. 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. 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. 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. d. 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances: (1) When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Army. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of members of the Army. e. 14-3. Characterization of service, or description of separation, a. An under other than honorable conditions certificate is normally appropriate for a member discharged a. under this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record (chap. 3, sec III). When the sole basis for separation is a separate offense which resulted in a conviction or court martial that did not impose a punitive discharge, the member's service may not be characterized under other than honorable conditions unless approved by HQDA (DAPC-EPAA-S). f. 14-12c. Members are subject to separation per this section for commission of a serious offense 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 under the manual for court 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.