IN THE CASE OF: BOARD DATE: 6 December 2019 DOCKET NUMBER: AR20180008831 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 14 May 2018 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b). However, the Army Board for Correction of Military Records (ABCMR) 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 believes his discharge was an injustice. He cites his exemplary record prior to the events that resulted in his discharge. He believes encounters with racist behaviors both on and off post led to his use of drugs. He understands he should have made better choices. However, he did not understand the addictive nature of drugs and believes he should have been offered an opportunity for medical treatment and recovery. 3. The applicant enlisted in the Regular Army on 5 August 1975. He completed his first full term of service and was honorably discharged on 30 March 1978 for the purpose of immediate reenlistment in the Regular Army. He was issued a DD Form 214 (Report of Separation from Active Duty) for this period that confirms his service was characterized as honorable. 4. The applicant reenlisted in the Regular Army on 31 March 1978 and on 31 December 1980. During this period, he was awarded the Army Good Conduct Medal (3rd Award), on or about 4 August 1984. 5. The applicant reenlisted in the Regular Army on or about 16 November 1984. 6. The applicant was arrested by the Augusta Police Department on 12 January 1985, for possession of cocaine and marijuana. He was released on bond with a court date scheduled for March 1985. His security clearance was suspended, pending investigation for possession of illegal drugs, effective 14 January 1985. 7. As part of a command-directed urinalysis on 14 January 1985, the applicant provided a urine sample that tested positive for tetrahydrocannabinol (THC). He was counseled on the findings of the urinalysis on 22 January 1985. 8. The applicant was notified on 3 April 1985 of his immediate commander's intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12d, by reason of drug abuse. 9. The applicant consulted with counsel on 4 April 1985 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12d, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. a. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if other than honorable be condition discharge, was issued to him. b. He acknowledged receipt of the proposed separation action and elected personal appearance before a board of officers on 4 April 1985. c. He was advised he could submit any statements he desired in his own behalf. His election shows he intended to submit statements, which he submitted prior to his appearance before a board of officers. 10. The applicant underwent a separation physical on 24 April 1985. The relevant Standard Form (SF) 93 (Report of Medical History) and DA Form 3822 (Report of Mental Status Evaluation) show he was medically qualified for separation and had no noted physical or mental ailments at the time of his examination. 11. The applicant was notified on 17 June 1985 that in accordance with the provisions of Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers), paragraph 5-5, and Army Regulation 635-200, a board of officers hearing would be convened to determine if he should be discharged due to misconduct prior to the expiration of his term of service. 12. The applicant's record contains four third party letters of support that he submitted before his appearance before a board of officers. All four letters were authored by members of his enlisted leadership. All four authors positively endorsed the applicant’s job performance, dedication to duty and military bearing. 13. A board of officers convened on or about 19 July 1985. The board recommended the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14, by reason of other acts or patterns of misconduct, with the issuance of DD Form 794A (UOTHC Certificate), as noted in the Summary of Proceedings. 14. The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 19 August 1985. There is no documentation present in the record to indicate when he was released from ADAPCP. 15. Consistent with the chain of command and board recommendations, the separation authority approved the applicant's discharge on 12 September 1985, by reason of misconduct, and directed that he be issued a UOTHC Discharge Certificate. 16. The applicant was discharged on 18 September 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as UOTHC. His DD Form 214 further shows he was credited with a combined total of 10 years, 1 month, 14 days of active service. 17. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurred with the corrections addressed in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the corrections addressed in Administrative Note(s) below, 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 18 September 1985, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780331 THRU 841115 REFERENCES: 1. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. 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 provides that 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008831 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180008831 5 ABCMR Record of Proceedings (cont) AR20180008831 4