ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20180004214 APPLICANT REQUESTS: in effect, an upgrade of his general, under honorable conditions discharge to honorable, and credit for 10 months and 3 days of delayed entry service. 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 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 that his military records show that he received a discharge under honorable conditions and he was told that his discharge records are actually “less than honorable” and he does not qualify for service from United States Automobile Associations (USAA). He is also not receiving credit for 10 months and 3 days of delayed entry service which would have given him over 27 months of military service. 3. A review of the applicant’s active duty service record shows the following: a. He enlisted in the Regular Army (RA) on 19 February 1985. His DD Form 4 (Enlistment/Reenlistment Document) shows that he was in the delayed entry program from 16 April 1984 to 18 February 1985. b. He served in Germany from 16 July 1985 to 15 January 1987. c. He accepted nonjudicial punishment (NJP) on 13 September 1985 for wrongful use of marijuana in the hashish form. His punishment included reduction to the grade of private/E-1. d. A memorandum, dated 23 April 1986, indicates that the applicant completed the Army Drug Abuse Prevention Control Program (ADAPCP), but a subsequent urinalysis test taken after the program tested positive for marijuana, which demonstrated the applicant’s continued abuse of the illegal substance. e. He accepted NJP on 15 May 1986 for disobeying a lawful order by unit police to stop running. His punishment included reduction to the grade of private/E-1. f. On 17 June 1986, his immediate commander notified him of his intent to initiate separation under the provisions of AR 635-200 (Enlisted Separations – Enlisted Personnel), paragraph 14-12c(d) for commission of a serious offense/abuse of illegal drugs. The reason for the commanders actions are: * Laboratory results determined that your urine sample, taken 17 July 1985 contained marijuana * Laboratory results determined that your urine sample, taken 3 March 1986 contained marijuana. g. After an exhaustive search of the applicant’s acknowledgment of his notification of separation is not available for the Board to review. h. On 17 June 1986, he was advised by his consulting counsel of the bases for the contemplating action to separate him for misconduct under AR 635-200, Chapter 14 and its effects; of the rights available to him; and the effects of any action taken by him in waiving his rights. He understood if he had less than six years total of active and reserve military service at the time of separation and being considered for separation for misconduct under AR 635-200, Chapter 14, he is not entitled to have his case heard by an administrative separation board. The applicant: * submitted statements on his own behalf but no documents are found in the applicant’s records * requested consulting counsel representation i. On 17 June 1986, his chain of command recommended separation under the provisions of AR 635-200, chapter 14-12a (minor disciplinary infractions) and for seriousness of the circumstances is such that that applicant’s retention would have an adverse impact on military discipline, good order, and moral of the unit. j. On 17 June 1986, the separation authority approved separation under the provisions of paragraph 14-12c(d) for commission of a serious offense and abuse of illegal drugs with the issuance of a General Discharge Certificate. k. He was discharged from active duty on 29 July 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under the provisions of AR 635-200, paragraph 14-12c. Item 28 narrative reason for separation shows misconduct-abuse of illegal drugs. It also shows that he completed 1 year, 5 months, and 11 days of active duty service. He had 10 months and 3 days of prior inactive service (Item 12e). 4. The applicant’s record is void of evidence that show he applied for a discharge upgrade with the Army Discharge Review Board within 15 years of the separation. 5. By regulation Army Regulation (AR) 635-200, chapter 14-12: (c) states that Commission of 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 for the same or a closely related offense under the Military Court-Martial. An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. (d) Abuse of illegal drugs. Members in (1), (2), or (3), below, against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 or section II of this chapter will be processed for separation. 6. By regulation, AR 601-210 (Regular Army and Reserve Components Enlistment Program) provides for Enlist non prior service (NPS) applicants in the delayed entry program (DEP) for periods determined by the commanding general (CG), USAREC, not to exceed 365 days. Enlistment in the DEP is authorized for qualified applicants who have agreed to enlist in the RA or into the Selected Reserve for one of the enlistment programs given in chapter 9. 7. AR 635-8 (Separation Documents and Documents) paragraph 5-6(l-8) block 12e (Total Prior Inactive Service) from previously issued DD Form 214, Retirement Point Annual Statement, DA Form 1506, or Service member’s record brief, enter the total amount of prior inactive service, less lost time, if any. DEP time that began on or after 1 January 1985 is not creditable service for pay purposes and will not be entered in this block. However, it is creditable for completing the statutory military service obligations (MSO) and will be entered in block 18. If not applicable, enter “00 00 00.” 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 short term of honorable service completed prior to multiple drug offenses which led to the applicant’s separation and the applicant already receiving a General Discharge, the Board concluded there was insufficient evidence to show an error or injustice which would warrant making a change to the characterization of service. Additionally, the Board found that time in the delayed entry program does not count towards active federal service and is not reflected on the DD Form 214, so the Board recommended that the applicant’s requested relief be denied. 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 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 635-200 (Personnel Separations-Enlisted Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Chapter 14-12: (c) states that Commission of 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 for the same or a closely related offense under the Military Court-Martial. An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. (d) Abuse of illegal drugs. Members in (1), (2), or (3), below, against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 or section II of this chapter will be processed for separation. 3. By regulation, AR 601-210 (Regular Army and Reserve Components Enlistment Program) provides for Enlist non prior service (NPS) applicants in the DEP (delayed entry program) for periods determined by the CG, USAREC, not to exceed 365 days. Enlistment in the DEP is authorized for qualified applicants who have agreed to enlist in the RA or into the Selected Reserve for one of the enlistment programs given in chapter 9. 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) AR20180004214 0 3 1