ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 May 2019

	DOCKET NUMBER:  AR20180013167


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable 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)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 8 December 1988

FACTS:

1.  The applicant did not file within the three 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 was told he could change his discharge.  He had an addiction problem that he sought help for; he has been clean for over 25 years.  He is a member of Narcotics Anonymous and was in recovery at the Department of Veterans Affairs (VA) in Detroit.

3.  The applicant enlisted in the Regular Army on 12 November 1986.

4.  The applicant accepted non-judicial punishment (NJP) on 24 October 1988, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go at the time prescribed to his appointed place of duty, on or about 6 October 1988, and for wrongful use of cocaine between 2 October and 12 October 1988.

5.  The applicant's immediate commander notified him on 9 November 1988 that he had been recommended for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – abuse of an illegal drug.  His commander cited the applicant's wrongful use of a controlled substance as the specific reason for the proposed separation.
6.  The applicant consulted with counsel on 15 November 1988 and was advised of the basis for the contemplated action to separate him from service under the provisions of Army Regulation 635-200, Chapter 14, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if he received a general discharge.  He submitted a statement in his own behalf, wherein he acknowledged that he would like to stay in the Army to complete the remaining 11 months of his enlistment.  He further stated that he would like to have his general discharge changed to an honorable discharge at a later date.

7.  The applicant's commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – abuse of an illegal drug.  The separation authority approved the recommended discharge on 23 November 1988 and directed that the applicant be issued a General Discharge Certificate.

8.  The applicant was discharged on 8 December 1988.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – illegal use of drugs, and his service was characterized as under honorable conditions.

9.  The Board should consider the applicant's overall record and provided statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1. The Board carefully considered the applicant’s statement, the evidence in the record and published guidance for consideration of discharge upgrade requests.  The Board noted the applicant’s post-service behaviors, but found no mitigating factors for his misconduct during his service.  The Board determined that his character of service was appropriate for the misconduct that led to his separation.

2. After reviewing the application and evidence, the Board determined that relief was not warranted

3. 
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.

ADMINISTRATIVE NOTE(S):

Not Applicable


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 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 sets 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.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.  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.

ABCMR Record of Proceedings (cont)	 AR20180013167


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