ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings BOARD DATE: 14 April 2020 DOCKET NUMBER: AR20180014838 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), dated 21 August 2018, with personal statement 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, in effect, he would like his general discharge upgraded to an honorable discharge. He was easily influenced due to his age and life experiences. He was introduced to drugs in the barracks by two noncommissioned officers (NCO). He was introduced to these drugs twice, and in each case, there was a drug screen the next day. He feels there was some form of corruption. a. He was raised in a single parent household by his mother from the age of 10 years old to the age of 21 years old. He was raised in church and had no knowledge of street life. He was in the B.R. Keller Jr. choir in church from 1975-1981 and he also traveled across the United States for five years with the Dallas inspirational choir. He had never used drugs or alcohol. b. He enlisted in the U.S. Army Reserve (USAR) and had no problems for two years and 10 months. He was extended from February 1984 until October 1986, and he was employed at Taco Bell. He started out as a line server and was promoted to a shift leader and soon after he was promoted to assistant manager. Eventually, he was promoted and worked as the manager from June 1984 through September 1986. He was an exemplary employee with no negative issues in his life. c. While in Basic Training in March 1984, he was hospitalized with pneumonia and frost bite. He was diagnosed with sleep apnea due to working late nights at the garrison motor pool. He has also been given a diagnosis of incurable back problems due to the weight of equipment associated being a [military occupational specialty (MOS)] 63H (Tank Weapon Technician) for M-60-A3, M-88 recovery vehicles, and M113 personal carriers. d. In October 1986, he entered active duty for advanced individual training (AIT) at Fort Knox, Kentucky. He had a good record and was promoted to private first class (PFC) due to his prior service of two years and 10 months. He graduated from AIT in January 1987 and was awarded MOS 63N (Tank Systems Mechanic). He received his orders to report to Fort Carson, CO by 10 February 1987; he still did not have any incidents or problems. d. He arrived at Fort Carson, CO on 19 February 1987. He was assigned to 4th Battalion, 68th Armored Regiment. His company was in the field when he arrived. His first day was uneventful until his NCO came to his room that night with alcohol and pressured him to drink. The NCO also took out a glass device with a bulb at the end and a hole in it, and pressured him to smoke. He later realized he had been introduced to crack, this incident took place around February or March of 1987. He was transferred to Delta Company and the NCO would come on payday and pressure him to smoke. This NCO would come at midnight and take him to withdraw all of his money from the automated teller machine (ATM); this happened on two occasions and he failed one drug test. e. He met another NCO, who was a tanker/gunner in his unit between 1987 and April of 1988. This NCO used drugs for quite some time; however, he did not know how or where to buy it. He and the NCO were on duty together, he was in the day room with another Soldier when he received a call from this NCO asking him and the other Soldier to come to the company office. When they arrived at the company office, the SGT pulled out a piece of crack and a pipe and asked if they knew how to smoke it. During the second incident, the SGT came on post, picked him up and took him to his home. His roommate brought some crack and he smoked some and the next day the unit had a drug test, which he failed. He never received any type of drug rehabilitation or counseling, he was just given a general discharge. 3. The applicant enlisted in the Regular Army on 28 October 1986. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 30 July 1987, for being disrespectful in language towards a superior NCO, on or about 30 July 1987 * on 9 September 1987, for wrongfully use of cocaine, which was detected by biochemical testing of a urine sample, on or about 16 June 1987 * on 21 October 1987, for being disrespectful in language towards an NCO, on or about 12 October 1987 5. The applicant was formally counseled on three separate occasions between 24 November 1987 and 18 January 1988, for reasons including but not limited to: * being late for guard inspection, uniform deficiencies * disobeying an order and failure to report * signing in to Charge of Quarters (CQ) every hour for six days 6. The applicant's record contains a Urinalysis Testing Worksheet, Form 1106, which was prepared on 4 March 1988 and which shows he tested positive for cocaine use. 7. The applicant's record is void of any documentation that suggests he was enrolled or participated in a drug or alcohol rehabilitation program. 8. The applicant underwent a mental status evaluation on 21 March 1988. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had passive behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determine he had the mental capacity to understand and participate in any administrative proceedings and he was psychiatrically cleared for any administrative action deemed appropriate by his Command. 9. The applicant's commander notified the applicant on 5 April 1988 that he had initiated actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c and 14-12d, by reason of misconduct – commission of a serious offense. As the basis for his actions, the commander cited the applicant's pattern of misconduct consisting of being disrespectful to NCOs, illegal drug use, failure to obey orders, and failure to go to his appointed place of duty. 10. The applicant's commander formally recommended the applicant's separation on 5 April 1988, under the provisions of Army Regulation 635-200, Paragraph 14-12c. 11. The applicant consulted with counsel on 6 April 1988 and acknowledged receipt of the notification memorandum. He elected to have a personal appearance and consideration of his case before a board of officers; however, the applicant did not have sufficient time in service to qualify for an administrative separation board. The applicant declined to submit a statement in his own behalf. 12. The separation authority approved the recommended discharge on 18 April 1988 and directed that the applicant be issued a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 25 April 1988. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – Abuse of Illegal Drugs. His service was characterized as under honorable conditions (general). 14. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 27 April 1989, determined he was properly discharged, and denied his request for relief. 15. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The applicant is registered in the VA’s Joint Legacy Viewer (JLV) but has not been diagnosed or treated for any medical conditions to include behavioral health diagnoses. He does not have a service connected disability rating. He has no records in iPERMS. The Armed Forces Health Longitudinal Technology Application (AHLTA), & Health Artifacts Image Management Solutions (HAIMS) did not exist at the time of the applicant’s service. A review of the available documentation did not find medical evidence to support a behavioral health diagnosis at the time of his discharge. On 21 March 1988, he was evaluated by the brigade surgeon and determined to have no psychiatric diagnoses thus meeting retention standards IAW AR 40-501 from a behavioral health perspective. There is no behavioral health condition to consider with respect to mitigation of the misconduct that led to his discharge. 16. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, the medical advisory, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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. X CHAIRPERSON 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 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 //NOTHING FOLLOWS//