ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180011203 APPLICANT REQUESTS: in effect, correction of the narrative reason APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement 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, his discharge was upgraded to honorable; however, a full relief was not done by the Board. 3. The applicant provides a self-authored statement which states: a. His military record for drug use was not correct. His mistake was being in the presence of people smoking pot. The lab testings’ were done incorrectly, studies have shown to conclude that the Army and other branches of service have recalled military personnel on dismissed drug testing results, but did not give him the chance to present to counsel under the military code of justice, prior to separation. b. He was told he would be able to continue his service in the Reserves. He was granted partial relief to his under honorable conditions (general) discharged and it was changed to an honorable discharge. However, the Board did not change the narrative reason for separation. He feels he should have been called back to active duty. This is the only negative thing in his service record, he has never overdosed on drugs, been hospitalized, or put himself or any of his fellow service members in any danger. He did not know of his rights and he was just in the wrong place at the wrong time. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 11 August 1983. He was assigned to Charlie Company, 197th Support Battalion, and attached to Headquarters and Headquarters Detachment, Support Battalion, Fort Benning, Georgia from 3 October to 12 December 1984. b. DA Form 5180-R (Urinalysis Custody and Report Record) shows that the applicant laboratory test results were positive, dated 16 October 1984. c. He underwent a medical and mental examination on 30 October 1984, the examiner qualified him for separation and states he met the retention requirements of AR 40-501 (Medical Services – standards of Medical Fitness), Chapter 3. d. The applicant’s immediate commander advised him on 7 November 1984 of his intent to recommend him for administrative separation from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12d for misconduct, abuse of illegal drugs He further advised him that he had the right to consult with legal counsel, and he may consult with civilian counsel retained at his own expense, the right to submit statements in his own behalf, the right to present his case before a board of officers, if he had 6 years or more of service. e. The applicant signed a statement that he consulted with legal counsel on the basis for the contemplated action to accomplish separation for drug abuse under the provisions of AR 635-200, Chapter 14 and its effects, the rights available to him, and the effect of any action taken by waiving his rights. He acknowledged: * the right to have his case considered by a board of officers * the right to a personal appearance before a board of officer * the right to submit a statement on his own behalf, he provide a statement on 8 November 1984 * the right to counsel as his military counsel and civilian counsel at no expense to the government * 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 7 November 1984, 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 – abuse of illegal drugs. g. The applicant provided a statement on his own behalf on 8 November 1984 that stated in summary that he use drugs as means to escape his life prior to joining the military. h. Consistent with the chain of command recommendations on 5 December 1984, the separation authority approved the request for discharge under the provisions of AR 635-200, paragraph 14-12d for the commission of a serious offense, misconduct – drug abuse. He directed he be issued a General, Under Honorable Conditions Discharge Certificate. i. The applicant was discharged from active duty on 12 December 1984 under the provisions of AR 635-200, paragraph 14-12d for the commission of a serious offense, misconduct – drug abuse, SPD: JKK His DD Form 214 (Certificate of Release or Discharge from Active Duty) his characterization of service under honorable conditions, general. He completed 1 years and 4 months and 2 days of active service this period. He had no lost time. j. The Army Discharge Review Board, by letter, on 3 October 1985 to the applicant informed him that the Board granted him an upgrade to his under honorable conditions, general discharge and changed his discharge to an honorable discharge. He was issued a new separation document DD Form 214. 5. By regulation AR 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 AR 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 reviewing the application and all supporting documents, the Board determined relief was warranted. Based upon the overall service of the applicant, the limited scope of the misconduct, as well as the type of misconduct leading to his separation, the Board concluded that granting clemency by changing the authority ofr separation, the narrative reason and the separation code was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing: * (Item 25) Separation Authority: AR 615-200 * (Item 26) Separation Code: JND * (Item 28) Narrative Reason for Separation: Miscellaneous/General Reasons 8/21/2019 X CHAIRPERSON Signed by: 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), 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. 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. AR 40-501 (Medical Services – standards of Medical Fitness) sets forth the medical conditions and physical defects which are causes for rejection for military service in peacetime. 4. 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.