ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20180005068 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States). * character reference * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he would like his discharge upgraded because he has changed since the time he was discharged. He has become an honorable and understanding person. 3. The applicant provides a character reference from CEO OF CP Investments, LLC, dated [unknown]. The [applicant] is not only a person of integrity, he is also an outstanding medical assistant with x-ray tech (limited scope) and electro- cardiograph expertise. She has known the applicant for many years. At the Residential Care Home, facilitators are required to manage a vast amount of time sensitive documentation and management. During the [applicant’s) tenure, they could always depend on him to deliver. He has both modeled and trained staff to administer health appropriate residential care. His military experience, personal and business acumen is exemplary. His excellent communication skills (both verbal and written form) allows him to connect with all kinds of residence and families. He would definitely contribute and be a valuable asset for any organization. Ms. provided a detailed character letter (detailed letter enclosed in packet). 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 13 May 1982. He was promoted to private first class effective 1 October 1982. b. He accepted non-judicial punishment under the provisions of Article 15 on/for: * 1 March 1983 - wrongful possession of marijuana on 30 December 1982, reduction to private (PV1)/E-1 (suspended for 30 days), forfeiture of $125, and extra duty * 24 October 1983 - absent himself from his unit from 16 to 17 October 1983 and failing to go at the time prescribed to his appointed place of duty on 17 October 1983, reduction to private E-2 (PV2) (suspended for 90 days, to be automatically remitted if not vacated before 23 January 1984), forfeiture of $64, and extra duty, vacated on 24 October 1983 and reduced to PV2 * 27 December 1983 - possession of habit forming narcotic drug (marijuana) on 9 December 1983, reduction to PVT/E1, forfeiture of $133, and 14 days extra duty (all punishment suspended for 180 days pending outcome of urinalysis testing, to be automatically remitted if not vacated by 26 June 1984) * 25 January 1984, possession of a habit forming narcotic drug (marijuana) and opium alkaloids, forfeiture of $290 per month for two months and extra duty c. Criminal Investigation Division (CID) initial report, dated 12 December 1983, shows: * location of occurrence - William Beaumont Army Medical center (WBAMC), El Paso, TX * date/time of occurrence - 9 December 1983 at 12pm * date/time reported - 9 December 1983 at 12pm * title – the [applicant] had wrongful possession of a controlled substance (marijuana) * synopsis - investigation disclosed that a field jacket belonging to the [applicant] was found to contain numerous marihuana seeds, and three smoking devices which contained marihuana residue, the evidence seized was positive for presence of marihuana d. On 11 January 1984, his immediate commander notified him that action was being initiated to separate him under the provisions of chapter 14, paragraph 14-12d, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for abuse of illegal drugs. The commander advised the applicant of his right to: * consult military counsel or civilian counsel at his own expense * submit statements in his own behalf * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * present his case before a board of officers if he has 6 years of total active and reserve military service at the time of separation and be represented by an attorney at the board * waive any of the above rights e. On 12 January 1984, a CID investigator informed the applicant of his rights and wanted to question him for offenses suspected of (wrongful possession of a controlled substance (marihuana)). The applicant signed DA Form 3881 (Rights Warning Procedure/Waiver Certificate) and selected that he did not want to be questioned or say anything. f. On 12 January 1984, his immediate commander recommended him for a bar to reenlistment. On 17 January 1984, his intermediate commander approved the bar to reenlistment. g. CID Form 36 (Field Test Analysis on Non-Narcotic Substances), dated 19 January 1984, shows results of positive marihuana and opium alkaloids. h. On 24 January 1984, a mental status evaluation was conducted. The examiner determined he had the mental capacity to understand and participate in proceedings, and was mentally responsible. i. On 25 January 1984, his immediate commander recommended that he be separated under the provisions of chapter 14, paragraph 14-12d, AR 635-200, serious misconduct - abuse of illegal drugs. He requested that rehabilitation requirements in accordance with (IAW) AR 635-200, paragraph 1-19a be waived. j. On 9 February 1984, the intermediate commander recommended the applicant be separated from the service under the provisions of chapter 14, AR 635-200. k. On 10 February 1984, the separation authority approved the applicant to be separated under the provisions of chapter 14, paragraph 14-12d, AR 635-200, with a separation program designator of JKK and a general discharge certificate. Rehabilitation requirements IAW paragraph 1-18, AR 635-200, were waived. l. On 23 February 1984, he was discharged from active duty. He was discharged under the provisions of chapter 14, AR 635-200, misconduct-drug abuse with an under honorable conditions characterization of service. He completed 1 year, 9 months, and 11 days of net active service. His DD Form 214 shows he was awarded or authorized: Army Service Ribbon and Marksman Marksmanship Qualification Badge (M-16) m. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 5. 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. 6. 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 reviewing the application and all supporting documents, the Board determined relief was not warranted. In reaching its determination, the Board did consider the applicant’s petition and his service record in accordance with the DOD FY2018 published equity, injustice, or clemency determination. Based upon the relatively short term of honorable service completed prior to a pattern of misconduct, the Board concluded that the characterization of service received at the time of separation was appropriate. 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-Active Duty Enlisted Administrative Separations) 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. 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) AR20180005068 6 1