ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20190007973 APPLICANT REQUESTS: The applicant requests upgrade of his general under honorable conditions discharge from the U.S. Army Reserve (USAR) to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). 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 he failed the urinalysis test. He completed his 20 years and he believes he should have an opportunity to receive his benefits back. He does not have anything to submit because he lost all his documents in Hurricane Maria. He would like a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), updated, if everything comes out right. 3. On 28 May 1980, the applicant enlisted in the USAR. His record shows he reenlisted on two occasions: 8 February 1992 and 16 November 1997. 4. His record is void of a separation packet. His record contains: a. DA Form 2-1 (Personnel Qualification Personnel Record– Part II), which shows he was awarded or authorized: * Army Reserve Components Overseas Training Ribbon * Army Service Ribbon * Army Reserve Components Achievement Medal (3rd Award) * Noncommissioned Officer Professional Development Ribbon * Armed Forces Reserve Medal * Humanitarian Service Medal 1 * M16 Rifle Sharpshooter Marksmanship Qualification Badge b. DD Form 214 which shows he served on active duty from 11 July 1980 to 7 November 1980, a total of 3 months and 27 days net active service this period. c. Memorandum from Commander, 65th U.S. Army Regional Support Command (USARSC), Fort Buchanan, PR, to Headquarters, Department of the Army (HQDA), Office of the Deputy Chief of Staff (ODCS), G-1, dated 31 January 2003, which states: (1) The applicant's enclosed involuntary separation has been carefully reviewed and considered in accordance with Army Regulation (AR) 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), Chapter 12 (Misconduct). On 16 January 2003, an administrative separation board found the applicant did commit an act of misconduct by using cocaine and marijuana. The board recommended that the applicant be discharged from the USAR for misconduct with a general, under honorable conditions characterization of service. The applicant had completed 18, but less than 20 years of qualifying military service for retired pay. (2) He has determined that the applicant should be separated from the USAR with a general, under honorable conditions characterization of service. He recommended that the execution of the discharge be approved. d. Memorandum from ODCS, G-1 to Commander 65th USARSC, Fort Buchanan, PR, received date of 13 June 2003, which states the enclosed request for involuntary separation of the applicant was returned for final disposition as deemed appropriate by the area commander. It indicated that approval by HQDA is no longer required because the applicant was credited with 20 years of qualifying service on 27 May 2003. e. Orders 03-169-00005, dated 18 June 2003, which shows the applicant was discharged under AR 135-178 from the USAR with an under honorable conditions (general) discharge, effective 31 January 2003. f. Memorandum from USAR Personnel Command, Saint Louis, MO to the applicant, subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 20 August 2003, which states, in pertinent part, the applicant completed the required years of qualifying reserve service and was eligible for retired pay on application at age 60. 5. The record is void of a mental status evaluation or a medical examination. 6. The applicant states he failed the urinalysis test. He completed his 20 years and he believes he should have an opportunity to receive his benefits back. His record shows a board recommended the applicant for discharge for an act of misconduct by using cocaine and marijuana, with a general under honorable conditions characterization of service and the commander agreed with the board's findings. The applicant did receive his 20-Year letter for his service in the USAR. 7. In regards to his request for an updated copy of his DD Form 214, the applicant record only contains one DD Form 214 and it was for the period ending 7 November 1980, and his characterization of service is listed as honorable. 8. AR 135-178, Chapter 12, states a Soldier may be discharged for misconduct for minor disciplinary infractions, a pattern of misconduct consisting solely of minor military disciplinary infractions, a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, commission of a serious offense, abuse of illegal drugs (discharge action will normally be based on commission of a serious offense), and civil conviction. 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. Honorable is not authorized unless the soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate 9. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the general under honorable character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is 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. 12/3/2020 X CHAIRPERSON 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. Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), in effect at the time, provided for the separation of enlisted personnel of the U.S. Army Reserve and Army National Guard. Chapter 12 (Misconduct) established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct consisting solely of minor military disciplinary infractions, a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline, commission of a serious offense, abuse of illegal drugs (discharge action will normally be based on commission of a serious offense), and civil conviction. It stated action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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. Honorable is not authorized unless the soldier's record is otherwise so meritorious that any other characterization clearly would be 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS//