ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20180003594 APPLICANT REQUESTS: reconsideration for the upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Records) 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 AR20060008886 on 21 February 2007. 2. The applicant states, in effect, at the time of the infraction (August – September 1988), he was not a sergeant (SGT/E-5) and not advised by council (i.e. counsel). As an enlisted specialist (SPC/E-4) he never had an Article 15 or any other major infractions but he was demoted from E-4 to private (PVT/E-1) without any checks and balances of his military record or awards. He was charged with a positive urinalysis. He was demoted without proper procedures. He has been denied employment and most of all his dignity. At the time he was young and did not know he injected anything into his system. He never had a drug problem or habit. He has been a model citizen and has never been into drugs or broke the law. He has and always will have respect for the Armed services of every branch and his country. He ate or drank something that came up on the urinalysis. At the time and through the years he felt frustrated, he let his fellow Soldiers and most of all his family and himself down. He is trying to get his self-pride and dignity back. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 23 November 1981 and reenlisted on 4 April 1986 for 4 years. b. He accepted non-judicial punishment under the provisions of Article 15 on 13 July 1988 for using cocaine between 10 and 20 January 1988. His punishment was reduction to PVT/E-1. c. On 3 August 1988, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of chapter 14, paragraph 14-12c, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for misconduct- abuse of illegal drugs. The reason for the proposed action was for testing positive for cocaine. The commander recommended that he receive an under other than honorable discharge and advised the applicant of his right to: * consult with counsel and/or retain civilian counsel at no expense to the government * submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative board if you have 6 or more years of active and reserve military service at the time of separation * waive any of the above rights * receive a mental status evaluation d. On 4 August 1988, he consulted with legal counsel and was advised of the contemplated discharge action. He waived his rights to have his case considered by a board of officers and appearance before a board of officers. He did not submit a statement in his own behalf. He acknowledged: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he understood if he received a discharge which is less than honorable, he may apply to the Army Discharge Review Board (ADRB) and/or the ABCMR to upgrade his discharge; however, he realized that consideration by either board does not imply that his discharge would be upgraded * he understands that he will be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge e. On 4 August 1988, a mental evaluation was conducted. The examiner stated the applicant had the mental capacity to understand and participate in board proceedings. f. On 26 August 1988, the applicant's immediate commander recommended that the applicant be separated from the U.S. Army under the provisions of chapter 14, AR 635-200, prior to his expiration term of service. g. On 26 August 1988, the intermediate commander recommended the applicant be separated under the provisions of chapter 14, AR 635-200, for commission of a serious offense. He recommended the applicant receive a general discharge. h. On [day unknown] August 1988, the separation authority approved the applicant to be separated under the provisions of chapter 14, AR 635-200, for commission of a serious offense with a general discharge. i. On 8 September 1988, he was discharged from active duty. He was discharged under the provisions of paragraph 14-12c, AR 635-200. He completed 6 years, 9 months and 16 days of active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized: * Good Conduct Medal (2nd Award) * Army Achievement Medal (1st Oak Leaf Cluster) * Army Service Ribbon * Marksman Marksmanship Qualification Badge (M-16) 4. On 26 June 1989, the Army Discharge Review Board determined there was no evidence in the record that the applicant was misled, received improper or inequitable counsel, or that he was treated in an arbitrary/or capricious manner by his command. His issue was rejected and his appeal was denied. 5. On 21 February 2007, the ABCMR determined that the evidence presented did not demonstrate the existence of probable error or injustice and the Board denied his petition for an upgrade of his discharge. 6. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, conviction by civil authorities, desertion, and absence without leave. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW 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. 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 the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed 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 23 November 1981 until 3 April 1986.” 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. Army Regulation (AR) 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 (1), 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 (1), 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, desertion, and absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is unlikely to succeed or impractical. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003594 5 1