IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20190000242 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions to honorable. 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 his case warrants an upgrade because he completed all but 9 days of his enlistment contract; he only had a few minor drug charges, all of which occurred a short time before his expiration term of service (ETS). He contends he served his country proudly and with honor for more than 3 years. 3. The applicant's service records show: a. He enlisted into the Regular Army on 27 November 1984, in the grade of private (PV2)/E-2, for a term of 3 years and 14 weeks (making his ETS 29 February 1988); he was 18 years of age. On completion of initial training, orders assigned him to Fort Ord, CA; he arrived on 30 March 1985. At some point prior to December 1985, his chain of command promoted him to private first class (PFC)/E-3. b. On 2 December 1985, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana on or about 9 October 1985; punishment included reduction in rank from PFC to PV2. c. On 27 January 1987, the applicant's leadership promoted him to specialist four (SP4)/E-4. d. Permanent Orders awarded him the Army Good Conduct Medal (1st Award) for the period 27 November 1984 through 26 November 1987. e. On 26 January 1988, he accepted NJP for wrongful use of cocaine and marijuana, between 28 September and 28 October 1987, and for wrongful possession of marijuana on 5 November 1987; one of his punishments was reduction from SP4 to private/E-1. f. On 3 February 1988, the applicant's commander notified him of his intent to separate the applicant under the provisions of paragraph 14-12c (2) (b) (Acts or Patterns of Misconduct – Commission of a Serious Offense – Abuse of Illegal Drugs – Second-Time Drug Offenders, Grades E-1 to E-9), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). His reasons for this action were the following; the applicant: * used marijuana on or about 9 October 1985 * used marijuana between 28 September and 28 October 1987 * possessed marijuana on 5 November 1987 g. After consulting with counsel, the applicant acknowledged counsel had advised him of the basis for, and the effects of the separation action; counsel also informed him of his rights and the impact of waiving those rights. The document showing the applicant's elections did not reflect whether he submitted a statement in his own behalf. h. On 8 February 1988, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions. On 19 February 1988, the applicant was discharged accordingly (he separated 10 days short of his ETS). His DD Form 214 (Certificate of Release or Discharge from Active Duty) showed he completed 3 years, 2 months, and 23 days of his enlistment contract. He was awarded or authorized the Army Good Conduct Medal (1st Award), Army Service Ribbon, and two Marksmanship Qualification Badges. i. On 11 January 1989, the applicant petitioned the Army Discharge Review Board (ADRB) requesting an upgrade to honorable; he did not submit any supporting documentation. On 15 May 1989, the ADRB denied his request after determining his discharge had been proper and equitable; the ADRB noted relief was not warranted since no matters of propriety or equity were submitted. 4. The applicant asserts more than 3 years of his service was honorable and, in effect, having a few minor drug offenses should not have merited a general discharge under honorable conditions. Per AR 635-200, commanders were to consider for elimination from military service those Soldiers who abused illegal drugs, and were required to process all second-time offenders for separation, grades of E1 through E9. 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: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and not enough evidence of mitigating circumstances for the misconduct. The Board found limited evidence of remorse or post-service honorable conduct that might have mitigated the discharge characterization. The Board agreed that the applicant’s discharge characterization is appropriate. 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. 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, prescribed policies and procedures for enlisted administrative separations. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 14-12c(2) applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge. The regulation considered the abuse of illegal drugs as serious misconduct, and commanders could separate second-time offenders in grades E1 through E9; all Soldiers had to be processed for separation after a second offense. 3. The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included both the dishonorable and bad conduct discharge as punishments. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000242 5 ABCMR Record of Proceedings (cont) AR20190000242 1