ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 August 2019 DOCKET NUMBER: AR20180013611 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), period ending 12 March 1986 * 2 character statements 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 offered any counseling after testing positive on a urinalysis. He states he was reduced by one grade to private first class (PFC)/E-3 and released 2 months early before his expiration of term of service (ETS). He believes the reduction in grade to be sufficient punishment since this was a single incident. 3. The applicant provides: a. A self-authored statement requesting an upgrade of his discharge to honorable. He states the incident transpired in February 1985 during a medical injury. He says he was under certain restrictions that limited his duties, back when he was at the age of 23. The applicant states he was involved with a bad group of Soldiers that used marijuana. The Soldiers were subjected to a drug test and since he was known to associate with them, he was drug tested also. He states he did not pass. He shares the issue has weighed heavily on his conscience for the past thirty-three years. He expressed regret for his choice of actions at that time and humbly apologizes for what transpired during his tour of duty. He states he has worked for his local county since 1994 and have passed numerous drug tests since being employed with the county government. He shares, he’s happily married for twenty one years and have two step-sons and one grandson. b. A copy of his DD Form 214, period ending 12 March 1986 shows in Item 24 (Character of Service), he received a general under honorable conditions character of service for misconduct and drug abuse as referenced in Item 28 (Narrative Reason for Separation). c. Two character statements where the applicant has worked on the county government staff for the past 25 years and has worked his way up to be the director of maintenance for his county. He is said to manage 24 employees, manages over eighty buildings, and maintains a budget in the millions. The applicant is said to come from a patriotic family, is a good member of his community, and is a public servant. He is described as a respected citizen and is admired by his employees and peers. Those that wrote about the applicant stated he is only seeking to have his discharge upgraded to correct his mistake and to be able to proudly say he served honorably. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 5 May 1982. b. The applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 on 4 September 1985, for wrongfully using marijuana during the period of 13 – 28 June 1985. His punishment consisted, in part, of a reduction in rank to PFC. c. The applicant submitted urine samples on 16 September 1985 and 31 October 1985. Both sample results were positive for the presence of THC. d. On 20 February 1986, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12c and d, with the recommendation that he receive a General Discharge, Certificate, for submitting urine samples on 16 September 1985 and 31 October 1985, which both samples tested positive for the presence of THC. His commander informed him of his right to consult legal counsel and the opportunity to submit written statements on his behalf. e. Also On 20 February 1986, The applicant acknowledged receipt of the commander’s intent to separate him. On 21 February 1986, he consulted with legal counsel who advised him of the basis for the contemplated separation action under AR 635-200, paragraph 14-12c and d, for misconduct, commission of a serious offence and abuse of illegal drugs. He acknowledged his understanding of the rights available to him and the effect of any action taken by him in waiving his rights. He acknowledged the effect of his discharge on further enlistment or reenlistment. He did not provide a statement on his behalf. He also acknowledged: * he understood that he may encounter substantial prejudice in civilian life if a General (under honorable conditions) discharge was issued to him * he understood that if he received a discharge certification/character of service which is less than honorable, he could make application to the Army Discharge Review Board or ABCMR for upgrading, and he understood that an act of consideration by either board did not imply that his discharge would be upgraded f. On 28 February 1986, the applicant was recommended for separation by his immediate commander. The commander noted regulatory guidance in which he stated he did not consider other disposition of the applicant appropriate as guidance provides that a second-time drug offender, in the grade of E-1 thru E-9 must be processed for separation after a second offense. The recommendation for separation was endorsed by the applicant’s intermediate commander on 5 March 1986. g. On 6 March 1986, the separating authority approved the applicant's discharge, under the provisions of AR 635-200, paragraph 14-12c and d for the commission of a serious offense and abuse of illegal drugs. He ordered the applicant be issued a General Discharge Certificate. h. On 12 March 1986, the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c and d, for commission of a serious offense and abuse of illegal drugs. His DD Form 214 shows he completed 3 years 10 months, and 8 days of active service with no lost time, and was given a general under honorable conditions character of 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. By regulation, AR 635-200, in part states: a. Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general under honorable conditions discharge if such is merited by the member's overall record. b. First-time offenders, grades E1-E4 may be processed for separation as appropriate. 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 may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation as appropriate. The separation reason in all separations authorized by this paragraph will be “misconduct – abuse of illegal drugs.” 7. The Board should consider the applicant’s submission 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 and letters of support 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 was discharged after repeated drug related offenses 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. 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) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b 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. c. Paragraph 14-12c provides, Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. d. Paragraph 14-12d provides, first-time offenders, grades E1-E4 may be processed for separation as appropriate. 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 may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation as appropriate. The separation reason in all separations authorized by this paragraph will be “misconduct – abuse of illegal drugs.” 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 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 government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the 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) AR20180013611 5 1