ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 August 2019 DOCKET NUMBER: AR20180009493 APPLICANT REQUESTS: * Upgrade of his general discharge to honorable * Change item 28 narrative reason for separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: (DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 a young dumb kid, many miles from home. He turn to smoking hash while station in Germany. He is very proud he served in the military but when he looks at his DD 214, it makes him feel bad. He is 53 years old now and has been a very productive member of society since his discharge. He doesn’t smoke hash or weed anymore and would like an upgrade of his discharge. 3. He enlisted in the Regular Army on 7 September 1983. a. He accepted nonjudicial punishment(NJP) on/for * 3 March 1986, wrongfully use some amount of marijuana/hash on or about 13 December 1985, reduction to the grade of private/E1 * 13 August 1986, wrongfully use marijuana and cocaine between 11 May 1986 and 10 June 1986 * 5 September 1986, fail to go at the time of your appointed place of duty on or about 31 August 1986. b. The applicant's immediate commander notified the applicant on 6 August 1986 that he intended to recommend action on him for elimination from military service under the provisions of (AR) Army Regulation 635-200 (Enlisted Personnel – Personnel Separations), Chapter 14-12d, for abuse of illegal drugs. c. The applicant consulted with counsel 3 September 1986. He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him. He understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He understand that if he have less than 6 years of total active and reserve military service at the time of separation and is being considered for separation for reason of misconduct under AR 635-200, chapter 14., * He’s not entitled to have his case heard by an administrative separation board unless he is being considered for a discharge under other than honorable conditions * He request consideration of his case by an administration board * He request personal appearance before an administration board * Statement in his own behalf submitted herewith * He request consulting counsel and representation by counsel as his military counsel d. On 28 August 1986 the applicant's immediate commander recommended the applicant be eliminated from the service before the expiration of his term of service under the provisions of Chapter 14, AR 635-200, for misconduct, commission of a serious offense, abuse of illegal drugs. e. On 31 October 1986, consistent with the chain of command's recommendation, the separation authority approved the applicant’s discharge with an general under honorable conditions discharge for illegal drug abuse. f. On 13 November 1986, he was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 14-12c (misconduct drug abuse) with an under honorable conditions characterization of service. He completed 3 years, 1 month, and 18 days of active service. Lost days are 2 October 1984 to 8 October 1984, 22 July 1986 to 3 August 1986. 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, commanders are authorized to initiate separation action against Soldiers for various types of misconduct including those who commit a serious offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance DOD 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. Based upon the multiple drug offenses, as well as a lack of post-service character evidence to show that he applicant has learned and grown from the events leading to his separation, the Board agreed that the applicant's discharge characterization and reason for separation was warranted as a result of the misconduct. 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) 635-200 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that 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. 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 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. 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) AR20180009493 5 1