ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  26 April 2019

	DOCKET NUMBER:  AR20180015415


APPLICANT REQUESTS:  His general discharge be upgraded to an honorable 
discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	Soldier of the Month competition memorandum
*	Drug Diversion Program certificate
*	three Cabrillo College Skills certificates  
*	award certificate photo
*	a letter of support from his wife

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 is requesting his character of service be upgraded in the 
interest of equity and justice.  His service before his involvement with drugs was 
exemplary.  He was young and immature and used illegal drugs to fit in.  He regrets his 
involvement and has not used any illegal drugs since.  

3.  The applicant enlisted in the Regular Army on 28 October 1986.

4.  The applicant received a negative counseling statement on 6 January 1988 for 
writing two bad checks.

5.  The applicant received nonjudicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated 
offenses:

*	on 24 March 1988, for illegal use of cocaine, between on or about 1 March and 
on or about 4 March 1988 
*	on 16 May 1988, for falsifying an official document, on or about 30 April 1988
*	on 19 July 1988, for failure to go to his place of duty, on or about 18 July 1988 

6.  The applicant's commander notified the applicant on 9 August 1988 that he was 
initiating actions to separate the applicant under the provisions of Army Regulation  
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, due to his 
illegal drug usage.  He informed the applicant that he would recommend he receive a 
general discharge.

7.  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 Department of Veterans Affairs (VA) and that 
he could expect to encounter substantial prejudice in civilian life if he received a general 
discharge.  

	c.  He was advised he could submit any statements he desired in his own behalf; 
however, he elected not to submit a statement. 

8.  The applicant's commander formally recommended his separation from service 
under the provisions of Army Regulation 635-200, paragraph 14-12c (2).  

9.  The separation authority approved the applicant's discharge on 18 August 1988, 
under the provisions of Army Regulation 635-200, paragraph 14-12c (2), for misconduct 
? commission of a serious offense ? drug abuse.

10.  The applicant was discharged on 28 August 1988.  The DD Form 214 he was 
issued shows he was discharged under the provisions of Army Regulation 635-200, 
paragraph 14-12c, for misconduct ? commission of a serious offense ? drug abuse.  His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

*	he was discharged in the rank/grade of private/E-1
*	he had 1 year, 9 months, and 28 days of creditable service
*	no award of any personal decorations
*	characterization of service of under honorable conditions (general)
*	no lost time
11.  In her statement of support, the applicant's wife describes her husband as a loving 
and caring father, husband, son, and family man.  He is committed to being a good and 
caring person making sure that the family is okay and well taken care of.  He is trying to 
better himself and his family by continuing his education and is very goal orientated and 
is finishing up his degree.  

12.  The Board may consider the applicant's post service educational accomplishments 
and statement in accordance with the published equity, injustice, or clemency 
determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The applicant’s contentions, letter of support, and 
achievements 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.  The Board agreed that the applicant's 
discharge characterization was warranted as a result of the misconduct.
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.


	 Signature__________________

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 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 14-12c (2) states abuse of illegal drugs as serious misconduct.  It 
continues; however, by recognizing that 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 under paragraph 14-12a or 14-12b as appropriate. 

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)	 AR20180015415
	
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