ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 May 2019

	DOCKET NUMBER:  AR20180015034


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), with a self-authored statement dated       25 October 2018

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 that this happened 32 years ago and he has never been charged with drug possession or arrested for being under the influence of drugs or any other drug-related charges. 

3.  The applicant enlisted in the Regular Army on 24 January 1984.

4.  The applicant accepted non-judicial punishment (NJP) on 7 October 1985, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using some form of marijuana, on or about 3 September 1985, at Schofield Barracks, Hawaii. 

5.  The applicant's immediate commander notified the applicant on 14 November 1985, of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12c, by reason of his positive drug result for THC [marijuana].  The commander’s request included a record of counseling that showed the applicant was counseled on 20 September and 17 October 1985, for positive urinalysis result for THC.     

6.  The applicant consulted with counsel on 19 November 1985 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights.  He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge.  He indicated he did not desire to submit a statement on his own behalf.

7.  The applicant's commander formally recommended his separation from service on 19 November 1985, under the provisions of Army Regulation 635-200, paragraph 
14-12c (Commission of a Serious Offense), based on the applicant's positive urinalysis test results for THC.  The applicant's battalion commander endorsed the recommendation on 20 November 1985.  Both commanders recommended the applicant's separation under the provisions of Army Regulation 635-200, paragraph 
14-12c, by reason of the applicant's wrongful use of THC.  

8.  Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 27 November 1985, by reason of commission of a serious offense (abuse of illegal drugs), and directed that he be issued a General Discharge Certificate.

9.  The applicant was discharged on 18 December 1985.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued 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.

10.  In reaching its determination, the Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance.


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, his statement, the evidence in the record and published guidance for consideration of discharge upgrade requests.  The Board considered the nature of the misconduct and the absence of any additional misconduct in the record.  The Board felt the action to separate him was too harsh and determined that clemency was warranted.

2.  After a review of the evidence, the Board determined that relief was warranted.


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:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for full relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 18 December 1985 to reflect an Honorable character of service.



	 
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.  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.  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)	 AR20180015034


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