ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20180007593 APPLICANT REQUESTS: upgrade of his under other than honorable conditions to under honorable conditions (general) or 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 discharged due to two positive urinalysis tests for THC (marihuana). The second test was administered prior to the results of the first test, which is unfair because of the time and awareness. The tests were administered too close together. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 25 February 1987. b. He accepted nonjudicial punishment on/for: * 8 February 1988, failing to report to his appointed place of duty; reduced to the grade of private/E-1 * 1 April 1988, failing to report to his appointed place of duty * 18 May 1988, wrongfully use of marihuana, * 1 June 1988, wrongfully use of marihuana c. On 29 June 1988, the applicant was notified by his immediate commander’s intent to separate him under the provisions of Army Regulation (AR) 635-200, (Enlisted Personnel-Personnel Separations) chapter 14-12(c) (commission of a serious offense) and he acknowledged on same date for wrongful use or marihuana. a. d. On 29 June 1988, he was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of AR 635-200, chapter 14-12(c), its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under other than honorable conditions * understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * understood that as the result of issuance of a discharge under other than honorable conditions he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life e. On 29 June 1988, the commander formally initiated separation under AR 635-200, chapter 14-12(c) for commission of a serious offense due to applicant receiving a field grade article 15s for wrongful use of marijuana, and article 15s for failure to be at his appointed place of duty. f. On 7 July 1988, the chain of command recommended approval for separation under AR 635-200, chapter 14-12(c) for commission of a serious offense. g. On 17 August 1988, the separation authority approved separation under AR 635-200, chapter 14-12(c) with the issuance of an under other than honorable conditions discharge. h. On 26 August 1988, the applicant was discharged from active duty. His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged for misconduct (abuse of illegal drugs) under the provisions of AR 635-200, Chapter 14-12(c). It shows he completed 1 year, 6 months, and 2 days of active service. 4. 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, members are subject to separation for commission in 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. 6. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board considered his statement, service record, frequency and naute of his misconduct, the reason for his separation and whether to apply clemency. The NJP shows the positive tests were outside a 30-day window although he was punished for them both within 30 days. The Board found no evidence that the applicant accepted responsibility or showed remorse for the events leading to his separation. The Board found insufficient evidence of in-service mitigation and the applicant did not provide character witness statements or evidence of post-service achievements in support of a clemency determination. Based upon a preponderance of evidence to include the relatively short term of honorable service completed prior to a pattern of misconduct, which included multiple drug offenses, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct; there was no error or injustice. 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. 8/19/2019 X CHAIRPERSON Signed by: 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 - Enlisted Personnel), in effect at the time, provides 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 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 (General Discharge) states 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) (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission in 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 separation. 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 1. that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS//