ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20180016719 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 self-authored statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, 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 truly has no good reason for his drug use; however, this was his only drug offense in 49 years. He is truly sorry and hopes to have his discharge upgraded. 3. Following a brief period of service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 9 January 1990. 4. The applicant’s service record contains 2 memoranda for record (MFR) from Headquarters, U.S. Army Garrison-Panama, Fort Clayton, Panama, which show the applicant submitted urine samples that contained an unprescribed controlled substance [cocaine], on or about 31 October 1991 and 25 November 1991. 5. The applicant accepted nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 17 January 1992, for wrongfully using cocaine between on or about 27 October 1991 and 31 October 1991 * on 11 February 1992, for wrongfully using cocaine between on or about 21 November 1991 and 25 November 1991 6. The applicant's commander notified the applicant on 24 February 1992 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (Commission of a Serious Offense), by reason of his two positive urinalysis tests for cocaine. He acknowledged receipt of the proposed separation notification on the same day. 7. The applicant consulted with counsel on 24 February 1992 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 UOTHC discharge. He indicated he did not desire to submit a statement on his own behalf. 8. The applicant's commander formally recommended his separation from service on 25 February 1992, under the provisions of Army Regulation 635-200, paragraph 14-12c (Commission of a Serious Offense), based on the applicant's two positive urinalysis test results for cocaine. The applicant's battalion commander endorsed the recommendation the same day. 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 cocaine. Both commanders recommended he receive a general discharge. 9. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 27 February 1992, by reason of commission of a serious offense (abuse of illegal drugs), and directed that he be issued a General Discharge Certificate. 10. The applicant was discharged on 24 March 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, and his service was characterized as under honorable conditions (general). His DD Form 214 further shows in: * Item 12c (Record of Service – Net Active Service This Period), he was credited with completing 2 years, 2 months, and 16 day of net active service * Item 28 (Narrative Reason for Separation), the entry "Misconduct/Abuse of Illegal Drugs" 11. 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 After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions 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. He 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. BOARD VOTE Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X :X :X Deny 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. 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, U.S. Code, 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. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. The version of the regulation in effect at the time provided that the separation code "JKK" was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of "Commission of a Serious Offense – Drug Abuse." 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 states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 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) AR20180016719 3