ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  14 June 2019

	DOCKET NUMBER:  AR20190003292


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)

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 provides no supporting statement or documentation.  

3.  The applicant enlisted in the Regular Army on 1 April 1982.

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

* on 18 August 1983, for operating a vehicle while drunk and wrongful appropriation of a government vehicle, on or about 23 July 1983
* on 19 March 1984, for wrongfully and illegally using marijuana, between 
24 January and 6 February 1984 
* on 7 March 1985, for wrongfully and illegally using marijuana, between 
12 January and 22 January 1985 
5.  The applicant's immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) on 29 March 1985, based on the applicant's second drug offense.  The record copy does not indicate whether or not the bar was ultimately approved.

6.  The applicant's immediate commander notified the applicant on 25 April 1985 that he intended to initiate actions to separate the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct.  

7.  The applicant consulted with legal counsel and 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.  

   a.  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 Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge.  

   b.  He was advised he could submit any statements he desired in his own behalf but waived this option.  

8.  The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14.  The separation authority approved the applicant's discharge on or about 8 May 1985, under the provisions of Army Regulation 635-200, paragraph 14-12d, by reason of misconduct, and directed that the applicant be discharged with a General Discharge Certificate.

9.  The applicant was discharged on 13 May 1985.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct, and his service characterization was under honorable conditions (general).  His DD Form 214 further shows he was discharged in the rank/grade of private/E-1.

10.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his service characterization and a change to the narrative reason for separation.  The ADRB considered the applicant's petition on 3 November 1989 but denied relief.

11.  The Board should consider the applicant's self-authored statement in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board discussed the frequency and nature of the applicant’s misconduct, the absence of mitigating factors or circumstances and whether to apply clemency to the request.  The Board determined that there was insufficient evidence to mitigate the applicant’s misconduct and that the character of service the applicant received at separation was not in error or unjust. 

2.  After reviewing the application and all supporting document, the Board determined that relief was not warranted.
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 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 14-12b provides that a Soldier may be discharged for a pattern of conduct consisting of one of the following: discreditable incidents involving civil or military authorities; or discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  
   
   d.  Paragraph 14-12d, as then in effect, stated 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.


ABCMR Record of Proceedings (cont)	 AR20190003292
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