ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20190003351 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show, in effect, his service is characterized as honorable in lieu of under honorable conditions, general. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * DD Form 293 (Application for the Review of Discharge) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, he was discharged for commission of a serious offense, but nothing that he did merits the type of discharge he received. He believes he was given this type of discharge to ruin his future. It has been very hard for him to obtain employment with this type of discharge. He believes after 25 years he deserves a proper discharge. He hopes his request will be seriously considered. 3. Additionally, he states, in effect, he did not commit a serious offense. He was unable to get his GI Bill benefits, due to his discharge. He believes he was setup to fail. He did not even get the $1,200 back that he put in. 4. On 25 July 1989, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty 31D (MSE Transportation Systems Operator). He was assigned to Germany from 4 April 1990 through 19 January 1992. 5. On 26 August 1991, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from his unit from 15 to 18 July 1991. His punishment consisted of 14 days of extra duty and restriction. 6. General Counseling Forms, dated between October 1990 and October 1991, show he was counseled for failure to be at his appointed place of duty at the time prescribed on numerous occasions, failure to perform the duties of charge of quarters runner, failure to shine his boots, being AWOL, failure to repair, being disrespectful toward a noncommissioned officer (NCO), failure to pay his loan, failure to repair, unsatisfactory room appearance, failing to secure his equipment, failure to have his room prepared for inspection, refusing to carry out an order to sweep and mop the floor, and failure to secure his ration card. 7. On 18 November 1991, a Report of Medical Examination determined the applicant was qualified for separation. A Report of Mental Status Evaluation, shows on the same date he was determined to be mentally responsible and had the mental capacity to understand and participate in the proceedings deemed appropriate by his chain of command. 8. A memorandum from the Biochemical Test Coordinator to the applicant’s commander, dated 22 November 1991, confirms the applicant’s urine drug test results were positive for THC [Tetrahydrocannabinol]. 9. On 19 December 1991, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14, Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), for misconduct. The specific factual reasons for the proposed action are: his continued failure to report for duty, being disrespectful toward NCO’s, the company grade Article 15 he received for being AWOL, recent filed grade Article 15 he received for being AWOL again [not contained in the available record], and the vacation of suspension of his rank for wrongful use of marijuana [not in the available record]. The applicant was advised he was being recommended for the issuance of a general discharge. 10. On 19 December 1991, the applicant acknowledged receipt of the commander's notification of intent to separate him. He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and of the procedures/rights that were available to him. He elected not to submit a statement on his own behalf. 11. On 20 December 1991, the applicant's immediate and intermediate commanders recommended approval of the separation action under the provisions of chapter 14, AR 635-200 for misconduct. The immediate commander requested a waiver of rehabilitative transfer and recommended the issuance of a general discharge. 12. On 27 December 1991, the Criminal Law Division, determined his separation action under the provisions of chapter 14, for commission of a serious offense was legally sufficient. 13. The separation authority waived further rehabilitation attempts and approved the recommendation for discharge under the provisions of chapter 14, paragraph 14-12c, AR 635-200, for commission of a serious offense, and directed the issuance of a general discharge. 14. Accordingly, on 21 January 1992, the applicant was discharged. He completed 2 years, 5 months, and 24 days of net active service that was characterized as under honorable conditions (general). His DD Form 214 shows in: * 25 (Separation Authority) - AR 635-200, paragraph 14-12c * 26 (Separation Code) - JKQ * 28 (Narrative Reason for Separation) - Misconduct/Commission of a Serious Offense * 29 (Dates of Lost Time During This Period) “910715-910717” 15. The applicant's notification of separation action shows one of the specific reasons for discharge was the wrongful use of marijuana, the trial defense counsel and the approval authority both confirmed he was being discharged under the provisions of paragraph 14-12c, AR 635-200, for commission of a serious offense. 16. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 14-12c, provided for the separation of a Soldier by reason of commission of a serious offense [this included abuse of drugs]. 17. The applicant contends that he did not commit a serious offense. He believes he was given the type of discharge that he received to ruin his future. It has been very hard for him to obtain employment with this type of discharge. He believes after 25 years he deserves a proper discharge. He also states that he cannot use his GI Bill and he was not given back the $1,200 that he put in. 18. The wrongful use of marijuana by military personnel is considered to be a serious offense. He also committed numerous minor offenses for which he was discharged. His discharge was issued based on specific policies outlined in chapter 14, AR 635-200. A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter. The applicant was given the benefit of the doubt and all of his service was taken into consideration when he was issued a general discharge. 19. This Board has no policy that would provide for the upgrade of a discharges after a specific amount of time has passed. Each case is considered based on its own merits whenever a request is made based on propriety or inequity or both. Normally contributions that are made toward the GI Bill are forfeited when an individual is discharged with less than a fully honorable discharge. The Department of Veterans Affairs (VA) is the appropriate agency to contact regarding VA benefits. 20. He completed 2 years and almost 6 months of his 4 year service obligation. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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 his statement, the frequency and nature of his misconduct, the length of his service and whether to apply clemency. The Board did not find any mitigation for his misconduct and the applicant provided no post-service documents of support or accomplishments. The Board determined that clemency would not be applied and that the character of service he received at separation was neither in error or unjust. 2. After reviewing the application and all supporting documents, 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 Army Board for Correction of Military Records (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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 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, convictions by civil authorities, desertion or absence without leave. a. Paragraph 14c prescribes separation for commission of a serious offense. Paragraph 14-12c states that abuse of illegal drugs is serious misconduct. b. Paragraph 14-c(2)(b) states that second-time drug offenders, grades E1 - E-9, must be processed for separation. 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. c. Paragraph 3-7a states 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. 3. 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. 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 based on 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. 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.