ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 November 2019

	DOCKET NUMBER:  AR20190004249


APPLICANT REQUESTS:  The applicant requests reconsideration of his earlier request 
for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
to show his service as honorable or general under honorable conditions in lieu of under 
conditions other than honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	DD Form 214

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.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR20100021004 on 16 February 2011.

3.  The applicant states he had a lapse in judgement while on active duty and was found 
guilty of drug use.  He has lived a clean life since he was discharged.  He believes 
everyone deserves a second chance and he is requesting that the Board grant him that 
chance.  He thought he would receive counseling for the drug incident, but he was 
discharged instead. He was hurt and angry over the ordeal.  He had an exceptional 
record with 18 days remaining.  He has taken responsibility for his actions and he wants 
to clear up the matter.

4.  On 25 February 1986, having previously served in the Army National Guard (ARNG), 
the applicant enlisted in the Regular Army for a period of 3 years, which established an 
expiration term of service date of 27 February 1989.  He maintained his ARNG military 
occupational specialty of 13B (cannon crewmember) and was immediately assigned to 
Battery A, 2nd Battalion, 75th Field Artillery, Germany.  His record provides: 

      a.  He was promoted to the rank of specialist (E4/SPC) on 1 September 1986; and

      b.  Is void of indiscipline prior to August 1988, where copies of general counseling 
forms show between August and October 1988, the applicant was counseled on eight 
separate occasions for various incidents to include failing to make formation (five times), 
failing to clean his area of responsibility to standards, for failure to pay his rent, and for 
failure to establish a sure pay account. 

5.  A Disposition Form for Alcohol and Drug Abuse Prevention and Control Program 
Enrollment shows the applicant's chain of command (immediate supervisor and 
commander) signed the form on 25 August 1988 to refer him to the Alcohol and Drug 
Abuse Prevention and Control Program. 

     a.  Record of indiscipline (paragraph 4) shows "failure to report for duty/pending 
company Article 15."

     b.  The reason for referral shows "unusual excuses for absences" is checked and a 
handwritten statement, "Suspicion based on conversation with his wife that soldier has a 
drug or alcohol problem.  Has missed 2 days of work."  The remainder of the disposition 
form that shows action taken/agreements made is incomplete and the available records 
are void of evidence showing rehabilitative efforts and/or failure.

6.  Nonjudicial punishment (NJP) was imposed against the applicant on:

*	31 August 1988, for failure to report to his place of duty on time; to wit; 0530 for 
off post soldiers on 8 August 1988 
*	27 September 1988, for using cocaine. Of note: the date of violation is on or 
about 10 August 1988, the NJP was signed 22 July 1988 by the rear 
commander, and the applicant accepted and signed on 27 September 1988.  

7.  On 29 September 1988, a Medical Examination and a Mental Status Evaluation 
found the applicant qualified for separation.

8.  On 25 October 1988, a bar to reenlistment was approved against the applicant.

9.  On 1 December 1988, the applicant's unit commander notified the applicant he was 
initiating action to separate him under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations), paragraphs 14-12a and 14-12c, for misconduct.  Specifically, 
he had repeatedly displayed the incapability to adhere to numerous counseling's on 
missed duty formation, failed to keep up with rent payments, inability to maintain his 
military equipment and abuse of cocaine.  

10.  On 2 December 1988: 

        a.  The applicant acknowledged receipt of the commander's intent to separate him 
for misconduct-commission of a serious offense.  He consulted with legal counsel and 
was advised of the basis for the contemplated separation action, his available rights, the 
type of discharge he could receive and of the rights available to him.  He waived 
consideration of his case by a separation board, waived a personal appearance before 
a separation board, and elected not to submit a statement on his own behalf.  

      b.  The immediate commander submitted the recommendation to separate the 
applicant. Paragraphs "m" and "n" indicate it was not feasible or appropriate to consider 
other disposition due to disrespect of military discipline, lack of concern for improvement 
or behavior and use of cocaine.  The applicant should not be retained because of drug 
rehabilitation failure.  However, in paragraph "o – (description of rehabilitation efforts)" 
the commander states the use of cocaine in detrimental to good conduct, cohesion, and 
policy which is clear such action cannot be tolerated and requests rehabilitation be 
waived.

11.  On 6 December 1988, the applicant's intermediate commanders recommended 
approval with an under other than honorable conditions discharge.

12. On 14 December 1988, the separation authority approved the recommendation for 
separation and directed the issuance of a discharge under other than honorable 
conditions.  The approval disposition for waiver of rehabilitation is not addressed. 

13.  On 6 January 1989, he was discharged under the provisions of chapter 14, 
AR 635-200, for misconduct (commission of a serious offense) with an under other than 
honorable conditions discharge.  He completed 2 years, 10 months, and 12 days of 
creditable active service.

14.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published Department of Defense guidance on equity, 
injustice, or clemency.


BOARD DISCUSSION:

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 frequency and nature of his misconduct, the reason for his separation and 
whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors 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.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XXX	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.


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 
from active duty. 
       a.  Chapter 14 established policy and prescribed procedures for separating 
members for misconduct.  Specific categories included minor disciplinary infractions, a 
pattern of misconduct, commission of a serious offense, conviction by civil authorities, 
and abuse of illegal drugs. The issuance of a discharge under other than honorable 
conditions was normally considered appropriate. However, the separation authority 
could direct a general discharge if such was merited by the member's overall record.

      b.  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. 

      c.  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. 

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. 

 					//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190004249

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