ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  29 July 2019

	DOCKET NUMBER:  AR20180008870


APPLICANT REQUESTS:  an upgrade to his under honorable conditions, general discharge to an honorable 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)
* Personnel Records

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:

     a.  He was found positive for the use of marijuana, but he was not offered counseling prior to his discharge.  He was demoted from Staff Sergeant to Sergeant and assigned 6 weeks of extra duty in combination with his regular duties.  His commander recommended an honorable discharge, but he was not at my Article 15 proceeding.  

     b.  He no longer use illicit drugs and have not done so since his discharge.  He has no arrest or other infractions for illicit drugs.  His believes his discharge should be upgraded to honorable to reflect his pride in serving his country.  He continued to serve as a civil servant until his retirement in July 2008.  He was denied services and benefits from the Uniformed Services Automobile Association, due to his general discharge. 

3.  The applicant provides his DD Form 214 which shows his service from 11 June 1975 to 23 April 1986 and his service record which includes certificates, letters and performance reports reflecting outstanding service from 11 June 1975 to 23 April 1986.  


4.  A review of his service record shows:  

	a.  The applicant enlisted in the Regular Army on 11 June 1975.  He had immediate reenlistments on 12 December 1977, 29 September 1981, and 5 February 1985.  

	b.  He accepted nonjudicial punishment (NJP) on1 February 1986 for wrongfully using marijuana, his punishment included reduction to Sergeant/E-5.

	c.  On 4 March 1986, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), chapter 14-12c, misconduct, (commission of a serious offense), abusing marijuana.  He acknowledge receipt of the notification on 18 March 1986.

	d.  On 20 March 1986, he consulted with legal counsel.  He acknowledged:

* his right to a hearing before an administrative separation board, which he waived 
* his right to a personal appearance before a Board, which he waived
* he consulted with counsel and/or to consult with a civilian counsel at no expense to the Government
* maximum punishment
* 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 United States Army for a period of two years after discharge

	e.  On 20 March 1986, his immediate commander initiated action to separate him under the provisions of AR 635-200, 14-12c.  

	f.  The applicant submitted a statement in his own behalf on 25 March 1986, which states, he served his country proudly.  He never failed to accomplish a task, nor had he begrudge any part of the eleven years experiences he encountered.  He requested that the general discharge be set aside and be based upon his past record of loyal service, and replaced with an honorable discharge.  

	g.  On 3 April 1986, the separation authority approved the request for discharge under the provisions of AR 635-200, Chapter 14-12c, misconduct (commission of a serious offense).  He would be issued a general, under honorable conditions discharge certificate.

	h.  The applicant was discharged from active duty on 23 April 1986 under the provisions of AR 635-200, Chapter 14-12c, misconduct, (commission of a serious offense).  His DD Form 214 shows he completed 10 years, 10 months and 13 days of net active service.  It also shows he was awarded or authorized the:
* Army Service Ribbon
* Army Good Conduct Medal, (3rd Award) 
* Overseas Service Ribbon
* Noncommissioned Officer Professional Development Ribbon – 1 
* Army Commendation Medal (1st Oak Leaf Cluster)
* Army Achievement Medal (1st Oak Leaf Cluster)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge 
* Air Assault Badge

5.  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. 

6.  By regulation, AR 635-200, 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.  

7.  By regulation, AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD), members are subject to, separation code JKQ is appropriate when the narrative reason for discharge is separation for Misconduct in a serious offense.    

8.  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.

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 offense 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.

However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service.
BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from 11 June 1975 until 4 February 1985.”

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge.
	 
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 (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.  Chapter 14 -12c 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.  AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD), members are subject to, separation code JKQ is appropriate when the narrative reason for discharge is separation for Misconduct in a serious offense.  

4.  AR 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214.  It states for item 18 (Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable", enter "Continuous Honorable Active Service from" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment).

5.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180008870


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