ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 October 2019

	DOCKET NUMBER:  AR20180010734


APPLICANT REQUESTS: an upgrade to his general under honorable conditions discharge.

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, in effect he was never given a fair opportunity to prove his innocence to remain enlisted in the U.S. Army; therefore, his discharge was unjust.  He should have never been discharged.  He believes his discharge was unjust because on the last day of his permanent change of station (PCS) leave, he was advised he was under investigation for the wrongful use and possession of anabolic steroids.  On 11 January 1994, a urinalysis test was administered.  Approximately five months later, he was informed the urinalysis results were negative.  On 25 January 1994, the day before he was scheduled to depart, he was administered a second urinalysis.  This time the results were positive for steroids.  He was wrongfully accused and already convicted of a serious crime that he did not commit.  

3.  The applicant provides a copy of the original letter, written by his platoon sergeant, which was submitted at the time of his discharge proceedings.  In summary, his platoon sergeant lauded the applicant as being a model Soldier who performed all his duties with professionalism and always completed the mission in a timely fashion.  Also stating that the applicant always sought ways to improve himself through military and civilian schools, causing a positive impact on others.  


4.  A review of the applicant’s service record shows:

   a. He enlisted in the Regular Army on 13 August 1991.

   b. On 7 September 1994, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Separations), chapter 14, for misconduct - abuse of illegal drugs.

   c. The applicant acknowledged receipt and consulted with counsel.  Following consultation with legal counsel, he understood his rights and acknowledged the following:

* he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected not to submit a statement on his own behalf

   d. The separation authority approved the applicant's discharge, under the provisions AR 635-200, chapter 14-12c (2), with a characterization of service of general under honorable conditions.
   
   e. The applicant was discharged on 30 September 1994.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects he was discharged under the provisions of AR 635-200, Chapter 14-12c, with a characterization of service of general under honorable conditions.  It also shows he completed 3 years, 1 month and 18 days of net active service.  

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.  AR 635-200 states, action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history).

7.  The Board should consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 


BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted.  Based upon the misconduct which led to the applicant’s separation involving illegal drug use and the applicant already receiving an Under Honorable Conditions (General) characterization of service discharge, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s service record.

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 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7a (Honorable) provided 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) 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.  It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty.

   c.  Paragraph 14-12c (Commission of a Serious Offense) provided that commission of a serious military or civil offense, if the specific circumstances or the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual for courts-martial.

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)	 AR20180010734


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