ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20180013996 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 7 March 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 feels there was handling errors related to the drug testing process, and collections were not correct because two samples were taken, one positive and one negative. The characterization of his discharge has denied him benefits he earned through his service. 3. The applicant enlisted in the Regular Army on 27 April 1981. He reenlisted in the Regular Army on 20 September 1985 and was promoted to the rank/grade of sergeant (SGT)/E-5 effective 2 June 1986. 4. The applicant is shown to have provided urine samples on 14 and 16 April 1987 [shown on the collection forms as Julian dates of 7104 and 7106]. The first sample tested positive and the second sample tested negative. 5. Based on the applicant's positive test, his commander initiated separation proceedings under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for illegal drug use. 6. The applicant consulted with legal counsel on 9 August 1988. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. The applicant requested a personal appearance before, and consideration of his case by, an Administrative Separation Board (ASB). He requested representation by counsel but declined to submit statements in his own behalf. 7. An ASB was convened on 8 January 1988. The board recommended the applicant be separated with a general discharge and that his separation be suspended for six months. 8. The separation authority approved the applicant's discharge on 29 February 1988, under the provisions of Army Regulation 635-200, Chapter 14, and directed that the applicant be issued a General Discharge Certificate. The separation authority disapproved the ASB's recommendation for a 6-month suspension of his separation. 9. The applicant was discharged on 7 March 1988. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – drug abuse, and his service was characterized as under honorable conditions. His DD Form 214 further shows he was discharged in the rank/grade of SGT/E-5. 10. The Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade on 2 August 1990. The majority of the board recommended denial of all aspects of the case. The board president recommended that the minority opinion be accepted as there were questions raised as to why the applicant had to give two samples and the validity of the handling of his specimens. The decision was referred to the Secretary of the Army. 11. The Secretarial decision found that the character of service should remain as under honorable conditions; however, the reason and authority would be changed to Secretarial Authority under Army Regulation 635-200, Chapter 5. A DD Form 215 (Correction to the DD Form 214) was issued on 29 March 1993, reflecting this change. 12. The Board may consider the applicant's allegation of improper handling of his specimen with consideration of his prior honorable service, the ADRB minority opinion, and the change in the reason and authority for his separation in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, and in addition to the administrative notes below the signature, the Board determined that there is sufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found the statement and evidence of honorable service in the form of a completed enlistment and a personal meritorious award in the form of an Army Good Conduct Medal and at least five years of honorable service to be compelling. Furthermore, the Board found that the punishment of separation for one-time marijuana use with no opportunity for rehabilitation was too harsh given current standards. Therefore, the Board agreed that the applicant’s case warrants clemency in that the applicant’s period of honorable service and achievements have mitigated the misconduct resulting in the discharge characterization. ? 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: In addition to the administrative notes below the signature block, 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 amending the applicant’s discharge characterization on his DD Form 214 dated “88-03-07” to “Honorable.” 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): A review of the applicant's record shows his DD Form 214, for the period ending 7 March 1988, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 810427 UNTIL 850919 ? 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 5–3 (Secretarial plenary authority) provides that separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. d. Paragraph 14-12c states abuse of illegal drugs as serious misconduct. At the time of the applicant's service the regulation required separation of Soldiers in the grade of E-5 and above be processed for separation following a single positive drug screening. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180013996 4 1