ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20190004131 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 did not provide a statement in support of his request. 3. The applicant enlisted in the Regular Army on 11 April 1974. He reenlisted in the Regular Army on 12 January 1977, 14 September 1981, and 2 July 1984. 4. The applicant was promoted to the rank/grade of sergeant first class/E-7 on 4 November 1987. 5. During a random drug screening on 27 April 1988, the applicant provided a urine sample that tested positive for cocaine use. 6. The applicant was counseled on 19 May 1988, based on his positive drug screening. He was relieved for cause on the same date. 7. Court-martial charges were preferred against the applicant on 1 July 1988 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with wrongfully using cocaine between 15 April 1988 and 27 April 1988. 8. Before a summary court-martial on or about the applicant was convicted, in accordance with his plea, of illegal drug use. His sentence consisted of his reduction to the rank/grade of staff sergeant (SSG)/E-6. The sentence was approved on 26 July 1988. 9. The applicant's unit commander notified the applicant on 10 August 1988 that he was recommending the applicant's separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c(2), by reason of misconduct – commission of a serious offense. 10. The applicant consulted with legal counsel on 12 August 1988. a. He was advised of the basis for the contemplated discharge, the possible effects of an under 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, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He requested his case be heard by an administrative separation board and to be present with counsel at that board. 11. A U.S. Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) officer submitted a synopsis of the applicant's progress on 19 August 1988. It was noted the applicant had successfully completed the residence portion on the program on 17 June 1988 and was enthusiastically participating in the Track III program. His prognosis for remaining drug free was considered excellent. 12. The applicant's troop commander recommended on 25 August 1988 that the applicant be discharged for his misconduct and receive an under honorable conditions (general) discharge. 13. The applicant's administrative separation board was conducted on 23 November 1988. The board found the applicant had used illegal drugs and the evidence supported the separation recommendation. The board recommended the applicant's separation with an under honorable conditions (general) discharge. 14. The separation authority approved the recommendation for discharge on 6 January 1989, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. 15. The applicant was discharged on 13 January 1989, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – abuse of illegal drugs. His service was characterized as under honorable conditions (general). His DD Form 214 further shows he was discharged in the rank/grade of SSG/E-6; he was credited with 12 years and 2 days of net service this period and 2 years, 9 months, and 1 day of prior active service; and he had no lost time, 16. The Army Discharge Review Board denied the applicant's request for a discharge upgrade on 22 April 1994. 17. The Board may consider the applicant's three Good Conduct Medals and his three prior periods of continuous honorable active service and 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 considered the applicant’s statement, his record of service, the nature of his misconduct, his completion of ADAPCP, the reason for his separation and whether to provide clemency. The Board found insufficient in-service mitigation for his misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the correction stated in the Administrative Note(s) below. 2. After reviewing the application and all supporting documents, the Board found 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: With the exception of the correction stated in the Administrative Note(s) that follow, 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): A review of the applicant's record shows his DD Form 214, for the period ending 13 January 1989, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * IMMEDIATE REENLISTMENTS THIS PERIOD: 770112?810913; 810914?840701 * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770112 UNTIL 840701 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 provides for separation of Soldiers for illegal drug use and states that abuse of illegal drugs as serious misconduct. 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) AR20190004131 0 4 1