ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180005625 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable. 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 he was a young man and was stupid. He did not understand the impact it would have in his life. He is a grandfather and would like for his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show honorable not general. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 31 October 1979. He reenlisted on 28 June 1982 for 3 years. b. On 15 August 1984, biochemical test results, shows the applicant submitted a urine sample on 13 July 1984 that tested positive for THC. On 17 August 1984, DA Form 5180-R (Test) (Urinalysis Custody and Report Record), shows the applicant with a positive result. c. On 20 August 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. He was psychiatrically cleared for any administrative action deemed appropriate by his commander. d. On 21 (month undetermined) 1984, CompuChem Laboratories’ letter shows the applicant with a positive result of cannabinoid and cocaine. e. On 5 September 1984, he accepted non-judicial punishment under the provisions of Article 15 for using marijuana on or about 3 and 13 July 1984. His punishment was reduction to specialist and forfeiture of $200 pay per month for one month. f. On 21 September 1984, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions of chapter 14, section III, paragraph 14-12c, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for commission of serious offense. The commander advised the applicant of his right to: * submit statements in his own behalf * present his case before a board of officers and be represented by an attorney at the board * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * represented by an officer of the judge advocate general’s corps or civilian attorney at no expense to the government * waive any of the above rights g. On 25 September 1984, he consulted with legal counsel and was advised of the contemplated discharge action. He requested consideration of his case by a board of officers, personal appearance before a board of officers and counsel representation. He did not submit a statement in his own behalf. He acknowledged: * he understood that if he were being considered for separation under the provisions of AR 635-200, Chapter 14, Section III, (commission of a serious offense), and he is not being considered for a discharge under other than honorable conditions, he will neither have his case considered by a board of officers, nor have a right to counsel for representation * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life * 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 declined the to consult with counsel h. On 25 September 1984, the applicant's immediate commander recommended that the applicant be separated under the provisions of chapter 14, paragraph 14-12c, AR 635-200, abuse of illegal drugs. He requested that rehabilitation requirements in accordance with (IAW) AR 635-200, paragraph 1-18d be waived. i. On 9 October 1984, the intermediate commander recommended the applicant be separated from the service under the provisions of chapter 14, AR 635-200. j. On 23 October 1984, the separation authority approved the applicant to be separated under the provisions of chapter 14, paragraph 14-12c, AR 635-200, for commission of serious offense with a general discharge certificate. Rehabilitation requirements IAW paragraph 1-18d, AR 635-200, were waived. k. On 5 November 1984, he was discharged from active duty. He was discharged under the provisions of paragraph 14-12c, AR 635-200, misconduct-drug abuse with a general, under honorable conditions characterization of service. He completed 5 years and 6 months of active service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Army Good Conduct Medal * Expert Marksmanship Qualification Badge (M-16) l. On 18 May 1988, he applied to the ADRB for an upgrade of his discharge. On 28 March 1989, the ADRB determined the applicant was properly and equitably discharged and denied his request for an upgrade. 4. 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. 5. 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, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the multiple drug offenses, as well as the applicant already receiving a General discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the characterization of service. However, the Board did note that he 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 31 October 1979 until 27 June 1982.” 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-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. 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. ABCMR Record of Proceedings (cont) AR20180005625 4 1