ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 July 2019 DOCKET NUMBER: AR20190005417 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) 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), dated 19 March 2019 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 17 August 1990 * Department of Veterans Affairs (VA) Rating Decision, dated 18 June 2018 * VA Letters, dated 20 September, 5 December, and 20 December 2018 * VA Administrative Decision Letter, dated 31 January 2019 * VA Regional Office Letter, dated 20 March 2019 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 states, in effect, his discharge should be upgraded to match the findings and administrative decision of the VA. He should have never received a UOTHC discharge in the first place. Until he admitted having an alcohol/substance abuse problem, his service was loyal, faithful, honest, meritorious, and committed. The "willful wrong actions rule" did not and does not apply to him. The UOTHC discharge was an attempt to discredit him for the remainder of his natural life, yet the decision was overturned and he has all of his benefits 3. The applicant enlisted in the Army on 1 December 1988. 4. The applicant accepted nonjudicial punishment (NJP) on 1 March 1990, under the provisions of Article 15 of the Uniform Code Military Justice (UCMJ), for disobeying a lawful order, on or about 19 February 1990. 5. The applicant accepted NJP on 19 April 1990, under the provisions of Article 15 of the UCMJ, for wrongfully using a controlled substance (cocaine), on or between 24 February and 5 March 1990, and for wrongfully having in his possession a sum amount of marijuana, on or about 22 March 1990. 6. Before a summary court-martial on 1 May 1990, at Fort Richardson, Alaska, the applicant was convicted, pursuant to his plea, of wrongfully using a controlled substance. He was sentenced to 30 days of confinement. 7. The applicant's commander notified the applicant on 8 May 1990 that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c), for misconduct – abuse of illegal drugs. The commander cited the applicant's wrongful use of a controlled substances, cocaine and marijuana, as the reason for his proposed action. The applicant acknowledged receipt of the notification on 8 May 1990. 8. The applicant consulted with counsel on 11 May 1990 and was advised of the basis for the contemplated separation actions for misconduct, the rights available to him, and the effect of any action taken by him in waiving his rights. After consulting with counsel, he waived his right to consideration of his case by a board of officers. The applicant made an election to submit a statement in his own behalf. He stated the following: a. While he admitted to and was sorry for the use of drugs while he was in the service, he believed he made a substantial contribution to the drug suppression efforts at Fort Richardson by assisting the U.S. Army Criminal Investigation Command (CID) in arresting other individuals involved in drugs there on post. He put his life on the line by riding in the car with an agent and he purchased a half-ounce of marijuana from a suspect. Additionally, he provided the CID with a list of names of Soldiers in his battalion who were distributing cocaine. b. As a result of his work for CID, he placed himself in a position of great jeopardy. He was a marked man in the battalion and he believed his work for CID should be considered by his commander when deciding upon what type of discharge to give him. He asked to be considered for a general discharge rather than an UOTHC discharge. 9. The applicant's commander formally recommended his separation on 12 July 1990, under the provisions of Army Regulation 635-200, paragraph 14-12(c). His commander did not make a recommendation with respect to his service characterization. 10. The separation authority approved the recommended discharge on 6 August 1990, under the provisions of Army Regulation 635-200, Chapter 14, and directed the issuance of a UOTHC Discharge Certificate. 11. The applicant was discharged on 17 August 1990, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), for misconduct – drug abuse. His DD Form 214 confirms his service was characterized as UOTHC. 12. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 13. The applicant provides supporting documents from the VA that summarize the benefits he currently receives. These documents show the VA considers his service honorable for VA purposes. 14. The Board should consider the applicant's provided 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 statements, his service record, the frequency and nature of his misconduct, and whether to apply clemency. The Board found insufficient evidence of mitigating factors for his misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency consideration. Based on the preponderance of evidence, the Board determined that the character of service the applicant received at separation was not in error or unjust. 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: 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. Title 38, United States Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, an individual's medical condition may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. The ABCMR has no policy for the automatic upgrading of discharges basis on decisions made by the VA. 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. c. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions is normally considered 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) AR20190005417 4 1