ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 August 2019

	DOCKET NUMBER:  AR20180006819


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions discharge 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* Orders 262-1
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* General Discharge Certificate


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 on (VA Form 21-4138):

     a.  He was discharged from the United States Army Reserves (USAR) on 14 August 2002, for using cocaine.  Since his discharge, he has gotten married, completed a drug rehabilitation program, and received two bachelor degrees and a master’s degree.  He is a licensed journeyman electrician and an ordained pastor and serves as the men’s pastor at his church.  

     b.  He sincerely regrets the mistake he has made and feels he would make an excellent Chaplain in the USAR; however, he feels this discharge will prevent him from rejoining the USAR.

3.  The applicant provides a copy of his discharge orders which states, he received a general discharge under honorable conditions.

4.  A review of the applicant’s service record shows:

   a.  Having prior service in the Regular Army, he enlisted in the USAR on 16 January 1997.
   
   b.  The complete facts and circumstances surrounding his discharge are not available to the Board for review.  However, Orders 262-1, dated 19 September 2002 shows he was discharged under the provisions of Army Regulation (AR) 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations), due to misconduct and illegal drug abuse (cocaine).  He was issued a general, discharge under honorable conditions.
   
5.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations.

6.  By regulation, members are subject to separation for serious misconduct for abuse of illegal drugs.  Discharge action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.
 
7.  The Board should 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 drug offenses and the applicant already receiving an Under Honorable Conditions (General) discharge, the Board concluded that there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s 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 (AR) 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

  a.  Paragraph  2-9a (Honorable) states an 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 2-9b General, (under honorable conditions) states if a soldier’s service has been honest and faithful, it is appropriate to characterized that service as under honorable conditions.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspect of the soldier’s conduct or performance of duty outweighs the positive aspects of the soldier’s military record.
   
   c.  Chapter 12 1-d  (Abuse of illegal drugs) states abuse of illegal drugs is serious misconduct.  Discharge action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve state principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.


ABCMR Record of Proceedings (cont)	 AR20180006819


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