ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20180014519 APPLICANT REQUESTS: * upgrade of her under other than honorable conditions discharge to honorable * correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her continuous honorable service from 1983 to 1986 * permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 she was given an under other than honorable conditions discharge because she had a positive urinalysis. a. She served honorably from 1983 to 1986, but did not receive any discharge reflecting her honorable service. When they gave her the adverse discharge, they said she would be automatically upgraded after 6 months. b. She was young when she entered active duty and she made a huge mistake by using drugs. It was a scary time for her because she had a young daughter; all she could think about was being separated from her daughter and her family. She was given two choices: accept trial by court-martial, or receive an under other than honorable conditions discharge and lose her rank. She chose to be discharged because she did not have faith the court would find her innocent, and she did not want to take a risk because of her daughter. Although she knows what she did was wrong, she contends the punishment was too harsh. c. Since her discharge, she has been consistently employed by companies like Boeing and the MITRE Corporation; she has been a government contractor for the past 12 years and even held a secret security clearance. She maintains she has done well for herself, despite not having access to her military benefits. While she was on active duty, she attended drill sergeant school and was in a promotable status prior to discharge. She is a good person with strong morals and faith; she can provide outstanding references, both personal and professional. 3. The applicant's service records show: a. She enlisted into the Regular Army on 16 March 1983 for a 3-year term. On completion of initial training, she held military occupational specialty 76V (Materiel Storage and Handling Specialist). Effective 1 March 1984, her leadership promoted her to specialist four (SP4)/E-4. b. Orders assigned her to Fort Knox, KY and she arrived on or about 15 July 1985. On 11 March 1986, she was awarded the Army Good Conduct Medal (1st Award) for the period 16 March 1983 through 15 March 1986. c. On 13 March 1986, she immediately reenlisted for 3 years. d. On 4 August 1988, the applicant was administered a urinalysis test; on 26 August 1988, laboratory results confirmed the presence of cocaine. e. On 26 September 1988, her Fort Knox commander preferred court-martial charges against her for wrongful use of cocaine. On or about 17 October 1988, after consulting with counsel, the applicant requested discharge under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In her request, she affirmed no one subjected her to coercion and counsel had advised her of the implications of her request. She also acknowledged she was guilty of the charge and elected to submit a statement in her own behalf: (1) She stated she had served for over 5 years on active duty and had completed several training courses and schools. She had also been assigned to several posts within the United States and had one tour in Germany. She noted she had earned numerous awards and commendations. (2) She maintained she had always tried to do her best and enjoyed her career in the Army very much. She was aware of the seriousness of the offense charged and she felt hurt that it had put her career in jeopardy. She was a sole parent and regretted the agony she had caused her family. (3) In light of the foregoing, she asked the separation approval authority to approve her request for separation in lieu of court-martial, and stated an unfavorable characterization of service would serve as notice to those in her unit that the Army's need for discipline had been met. She wanted to start fresh in a new career and continue supporting her family. f. In their recommendations, the applicant's company and battalion commanders affirmed, apart from her experimentation with drugs, she had performed her duties in a very professional manner. g. On 24 October 1988, the separation authority approved the applicant's request and directed her discharge under other than honorable conditions; he also ordered her reduction from specialist/E-4 to private/E-1. On 31 October 1988, she was discharged accordingly; she completed 2 years, 7 months, and 19 days of her second enlistment. Her DD Form 214 shows she was awarded or authorized the Army Achievement Medal (2nd Award), Army Good Conduct Medal (1st Award), Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and a marksmanship qualification badge. The remarks section shows her initial enlistment; there is no entry regarding continuous honorable service. 4. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. 5. The Army has never had a policy for the automatic upgrade of characters of service; former Soldiers with less than honorable discharges can request an upgrade by petitioning the Army Discharge Review Board within 15 years of separation, or by submitting an application to the ABCMR. 6. Although not required at the time, the September 2000 revision of AR 635-5 mandated the inclusion of remarks pertaining to dates for immediate reenlistments. In cases where the separating Soldier received a less than honorable character of service, the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 7. The applicant acknowledges she made a huge mistake by using drugs. Since her discharge, she has turned her life around and been a government contractor for the past 12 years. Wrongful use of cocaine included both a bad conduct and dishonorable discharge as a punishment. Discharges under chapter 10, AR 635-200 were voluntary, and were available in lieu of trial by court-martial once charges had been preferred. 8. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions were carefully considered. The period of honorable of service is authorized per regulatory guidance. As for an upgrade to her characterization, 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. She did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending her DD Form 214 for the period ending 31 October 1988 by adding to the remarks "CONTINUOUS HONORABLE SERVICE FROM 19830316 - 860312.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to change in her discharge characterization and a personal hearing. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. A discharge under other than honorable conditions was normally considered appropriate. 3. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. Paragraph 6-11 (Approved for Discharge from Service under Other Than Honorable Conditions) stated commanders could reduce Soldiers discharged under other than honorable conditions to the lowest enlisted grade. 4. The Maximum Punishment Chart in the Manual for Courts-Martial, in effect at the time, showed the punishments for violation of Article 112A (Wrongful Use, Possession, etc. of a Controlled Substance – Cocaine)) included both a bad conduct and dishonorable discharge. 5. 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 on the basis of 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. 6. AR 635-5 prescribed policies and procedures for the preparation of the DD Form 214. The 1 October 1979 version of the regulation stated immediate reenlistments no longer required the issuance of DD Forms 214. Effective September 2000, the remarks section of the DD Form 214 was required to include dates of any immediate reenlistments. In cases where the separating Soldier received a less than honorable character of service, the regulation required the addition of the following remark: "CONTINUOUS HONORABLE SERVICE FROM (first day of service not listed on the DD Form 214) TO (date before commencement of current enlistment)." 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180014519 4 1