ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20180008748 APPLICANT REQUESTS: an upgrade to his general discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * printout/copy of the first page of his inactive clearance 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 made his mistakes; however, it’s been over 30 years since his discharge. He has been supporting the military by serving in Afghanistan and Kuwait for 13 years and he can only apply for certain jobs with an honorable discharge. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 November 1983. b. On the following dates he accepted nonjudicial punishment (NJP) under Article 15 on/for * 28 April 1985, for wrongful use of marijuana * 23 April 1986, for without authority, failing to go at the time prescribed to your appointed place of duty * 20 June 1986, for without authority, absent himself from his unit * 16 July 1986, for wrongful use of marijuana * 10 September 1986, for violating punishment of being restricted to barracks c. On 1 May 1985 and 10 June 1986, the results of the biochemical testing showed the applicant was tested on 25 February 1985 and 30 April 1986 and had a positive urinalysis for the substance - Marijuana. d. The applicant’s immediate commander advised him on 28 August 1986 of his intent to recommend him for administrative separation from the Army under the provision of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12d for being a second time offender of using illegal drugs and receiving four article 15’s. He further advised him that he had the right to consult with legal counsel and the right to present his case before a board of officers, if he had 6 years or more of service. e. After consulting with counsel, the applicant acknowledged counsel had advised him of the basis for this action, his available rights, and the effect of waiving those rights. He acknowledged: * the right to submit a statement on his own behalf, he elected to submit a statement within 7 days, his service records are void of the statement * he could encounter substantial prejudice in civilian life if general discharge under honorable conditions is issued * he would be ineligible to apply for enlistment in the Army for a period of two years after discharge f. On 4 September 1986, his immediate commander initiated the recommendation to separate him under the provisions of AR 635-200, paragraph 14-12d for the commission of a serious offense, misconduct – drug abuse. g. Consistent with the chain of command recommendations on 10 September 1986, the separation authority approved the request for discharge. He directed he be issued a General, Under Honorable Conditions Discharge Certificate. h. The applicant was discharged from active duty on 18 September 1986 under the provisions of AR 635-200, paragraph 14-12d for the commission of a serious offense, misconduct – drug abuse. His DD Form 214 shows he completed 2 years, 9 months and 18 days of net active service this period. 4. There is no evidence that the applicant applied to the Army Discharge Review Board for an update of his discharge. 5. By regulation 635-200, paragraph 3-7b 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. 6. By regulation 635-5-1, Separation Program Designators (SPD), members are subject to, separation code appropriate when the narrative reason for discharge is separation for Misconduct 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. 7. The Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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 standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. He was discharged for a criminal offenses and was provided an Under Honorable Conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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. AR 635-200, establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, -commission of a serious offense, and or conviction by civil authority. 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. Chapter 14 -12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of 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. c. Paragraph 14-12d, states for abuse of illegal drugs, the immediate and intermediate commanders will recommend separation or retention. They will -not recommend the type of discharge certificate to be awarded. Abuse of illegal drugs is serious misconduct, separation action normally will be based, upon commission of a. serious- offense. However, relevant facts may mitigate the nature of the offense. Therefore a single drug abuse, offense maybe combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. The separation, reason for all separations authorized by this paragraph will be "misconduct- abuse of illegal drugs. It further states that for first-time drug offenders, grades E5 to E9 will be processed for separation upon discovery of a drug offense, and second time drug offenders, grades El - E9 all members must be processed for separation after a second offense. Other personnel first time offenders, grades E1-E4, may be processed for separation as appropriate. Processed for separation means that separation action will be initiated and processed through the chain of command to the separation- authority for appropriate action. The immediate and intermediate commanders will recommend separation or retention. 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 stated 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. //MOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008748 4 1