ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20180006038


APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) 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 does not believe the record to be unjust.  He believes he was young and he made a mistake.  He carried the shame with him for 40 years.  It was a black mark and he is ashamed of it.  He loves his country.  He also wants the Board to check his records as he started in the Army in 1986. 

3.  A review of the applicant's service records shows: 

	a.  He enlisted in the U.S. Army Reserve under the Delayed Entry Program (DEP) on 27 March 1987.  He was discharged from the DEP on 2 April 1987 and enlisted in the Regular Army on 3 April 1987 for 4 years. 

	b.  He served in Germany from 15 August 1987 to 26 July 1988. 

	c.  On 7 April 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  

	d.  On 14 June 1988, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  His punishment included a reduction to E-1. 

	e.  On 15 July 1988, the applicant’s commander notified him of his intent to eliminate him from the service under the provisions of chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for a serious offense (twice testing positive for illegal drugs).  The commander recommended a General Discharge Certificate.

	f.  On 15 July 1988, the applicant acknowledged receipt of the notification of separation document.  He consulted with counsel and was advised of the contemplated action to accomplish his separation for misconduct under the provisions of AR 635-200, paragraph 14-12c, and its effects; of the rights available to him; and the effects of any action taken by him in waiving those rights.  He understood he may expect to encounter prejudice in civilian life if a General Discharge Under Honorable Conditions is issued to him.  He also understood that if he received a discharge/characterization of service which is less than honorable, he may make application to the Army Discharge Review Board or the ABCMR for upgrading; however, he understood that the an act of consideration by either board does not imply that my discharge will be upgraded.

	g.  Following this acknowledgement, the immediate commander initiated separation against the applicant.  His intermediate commander recommended approval. 

	h.  On 19 July 1988, the separation authority approved the applicant’s discharge under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel).  The applicant would be issued an Under Honorable (General) Discharge Certificate. 

	i.  On 27 July 1988, he was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of AR 635-200 with an under honorable conditions (general) characterization of service.  This form also shows: 

* he entered active duty on 3 April 1987
* he completed 1 year, 3 months, and 25 days of active service
* he was awarded or authorized: Army Service Ribbon, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with TOW Gunner Bar, and Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar 

4.  By regulation, members may be separated for misconduct, including for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

5.  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 multiple drug use 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.

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 Personnel)m in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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 (General Discharge) states 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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)	 AR20180006038


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