ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  5 September 2019

	DOCKET NUMBER:  AR20190008227


APPLICANT REQUESTS:  An upgrade of his under honorable conditions (general) 
discharge and correction of his DD Form 214 (Certificate of Release or Discharge from 
Active Duty) by removing the reference to military occupation specialty (MOS) 02L 
(Saxophone Player). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States), dated 29 May 2019
*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), date 29 May 2019
*	DD Form 214, for the period ending 18 December 1987

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, he is requesting an upgrade so he can acquire or be 
eligible for loan assistance through the Department of Veterans Affairs (VA).  He has 
become a productive member of society since being discharged.  He has made a career 
in the security field and he is due to retire soon as a fire marshal in New York.  He did 
not know the sins of his past would hurt him now.  Also, he never played the saxophone 
in the military; he only wants his discharge upgraded.     

3.  The applicant enlisted in the Regular Army on 28 June 1982.  He executed an 
immediate reenlistment on 11 April 1985. 

4.  The applicant’s record contains a DA Form 5180-R (Urinalysis Custody and Report 
Record) that shows he submitted a urine sample on 29 October 1985 as part of a 
random unit urinalysis inspection.  This sample initially tested positive for cocaine; 
however, after further testing on 18 November 1985, the results were changed to 
negative.  

5.  The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control 
Program (ADAPCP), Track II treatment program, based on the initial positive urinalysis 
result associated with his 29 October 1985 sample.     

6.  Orders Number 160-7, issued by Headquarters, U.S. Army Training Center and Fort 
Dix, Fort Dix, NJ on 9 June 1986, awarded the applicant MOS 02L (Saxophone Player), 
effective 8 June 1986. 

7.  The applicant was apprehended on 10 October 1986 and was cited for driving while 
intoxicated.  He received a general officer letter of reprimand.  The imposing officer 
directed that the letter be placed in his official military personnel file.  

8.  The applicant received nonjudicial punishment (NJP) on 3 November 1986, under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being 
incapacitated for the proper performance of his duties, on or about 11 October 1986, 
after previously overindulging in intoxicating liquor.  His sentence included reduction to 
the rank/grade of private first class (PFC)/E-3.

9.  The applicant underwent a mental status evaluation on or about 3 November 1986.  
His DA Form 3822-R (Report of Mental Status Evaluation) contains the following 
statement:

[The applicant] is being considered for elimination UP chapter 14 AR [Army 
Regulation] 635-200 [Personnel Separations – Enlisted Personnel] for the 
following misconduct illegal drug use ie: Cocaine.  [The applicant] was identified 
as having come up positive for cocaine use while in Panama during a Command 
Directed, Urinalysis in May 1985.  [The applicant] received a company grade Art 
15 and was taken off the E5 promotion list.  [The applicant] was again identified 
as having come up positive for cocaine during a Command Directed Urinalysis 
on 29 Oct 1985 given at the HQ CO BTCG Ft Dix.  Recently [the applicant] was 
cited for DWI on 10 Oct 1986 for driving under the influence and given a 
company grade Art 15 for Drunk on duty in conjunction with a Letter of 
Reprimand from the office of the Commanding General.

10.  The applicant’s service record contains the following:

   a.	A memorandum from Headquarters, U.S. Army Garrison – Panama, addressed 
to the U.S. Army Training Center and Fort Dix, dated 24 November 1986, which noted 
the applicant's positive test for cocaine on 7 November 1985. 
 
   b.	A memorandum for record from the Commander, Headquarters, BT Committee 
Group, U.S. Army Training Center and Fort Dix, dated 21 April 1987, subject:  Drug and 
Alcohol Progress, Reference [the applicant], in which the commander stated:

On 31 March 1987 during an interview with D_, Drug and Alcohol (D&A) 
counselor at the ADAPCP 	and counselor of [the applicant].  It was discussed 
whether [the applicant] should be released from the D&A program.  [The 
applicant] was enrolled in Track II at the ADAPCP on 16 October 1986.  In 
addition to [the applicant’s] self-admitted	drinking problem he was detected 
positive for marijuana during a command directed urinalysis Nov 85.  [The 
applicant] understands that rehabilitation is an individual goal and that failure on 
his part to successfully rehabilitate may result in disciplinary action and or 
separation from the military service UP Chapter 9 or Chapter 14 AR 635-200.  
When I asked [the applicant] if he felt if he was ready to come out of the D&A 
program he regarded that he was not at this time.  It was decided after our 
conference that [the applicant] would remain in the D&A program for an 
additional 6-10 weeks in group sessions.  [The applicant] has a very positive 
attitude and hopes that he can remain in the military beyond his normal ETS.

11.  The applicant’s service record contains two Report of Mental Status Evaluations 
and a Standard Form 88 (Report of Medical Examination) that show he received mental 
status evaluations and a separation examination on 12 June 1987 and 10 July 1987.  
These evaluations show:

*	no evidence of an nervous or mental disorder
*	he was mentally responsible for his behavior, and possessed sufficient mental 
capacity to participate in administrative or judicial proceedings
*	was cleared for any administrative action deemed appropriate by Command   

12.  The applicant accepted NJP on 16 July 1987, under the provisions of Article 15 of 
the UCMJ, for violating a lawful general regulation between 1 March and 5 June 1987.  
Specifically, he allowed a non-dependent to reside in his government quarters for a 
period of more than 90 days.

13.  The applicant's commander notified the applicant on 29 July 1987 of his intent to 
initiate actions to separate him from service under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of 
misconduct – commission of a serious offense.  As the basis for his actions, the 
commander cited the applicant's positive test results for cocaine and marijuana, being 
drunk on duty, receiving a DWI, being cited for a motor vehicle accident, careless 
driving, and living in government quarters with an unauthorized civilian female.

14.  The applicant's commander formally recommended the applicant's separation from 
service on 29 July 1987, under the provisions of Army Regulation 635-200, paragraph 
14-12c.  The commander reiterated his aforementioned reasons for his request. 

15.  The applicant consulted with counsel on 3 August 1987 and was advised of the 
basis for the contemplated actions to separate him under the provisions of Army 
Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the 
effect of any action taken by him to waive his rights.  He waived his right to 
consideration of his case by a board of officers, personal appearance before a board of 
officers, and to submit statements in his own behalf.  He acknowledged he may 
encounter substantial prejudice in civilian life if he received a general discharge.  

16.  The separation authority approved the applicant's discharge on 3 August 1987, 
under the provisions of Army Regulation 635-200, paragraph 14-12(c) misconduct - 
commission of a serious offense and directed, he be issued a General Discharge 
Certificate; however, he suspended the action for 180 days.

17.  The applicant received NJP on 30 November 1987, under the provisions of  
Article 15 of the UCMJ, for wrongfully using cocaine between 23 October 1987 and  
2 November 1987, which was detected by a biochemical test of a urine sample he 
provided to military authorities on 2 November 1987.         

18.  Consistent with the chain of command recommendations, the separation authority 
approved the applicant's discharge on 11 December 1987, under the provisions of Army 
Regulation 635-200, paragraph 14-12(c) misconduct - commission of a serious offense 
and directed he be issued a DD Form 257A (General Discharge Certificate). 

19.  The applicant was discharged on 18 December 1987.  His DD Form 214 confirms 
he was discharged 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 in:

	a.  Item 11 (Primary Specialty Number, Title and Years and Months in Specialty), his 
primary MOS (PMOS) was MOS 55B1O (Ammunition Specialist), which he held for  
5 Years, and 2 Months.  His secondary MOS (SMOS) was MOS 02L10 (Saxophone 
Player), which he held for 1 year and 6 Months.

	b.  Item 18 (Remarks), includes the entry:  "IMMEDIATE REENLISTMENT THIS 
PERIOD: 820628 TO 860410"

	c.  Item 24 (Character of Service), his service was characterized as "Under 
Honorable Conditions"
	
	d.  Item 28 (Narrative Reason for Separation), he was separated by reason of 
"MISCONDUCT/ABUSE OF ILLEGAL DRUGS" 

20.  The Board should consider the applicant's request 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 service record, 
the frequency and nature of his misconduct, a letter of reprimand, the bar to 
reenlistment, his ADAPCP enrollment and the reason for his separation.   The applicant 
made a statement pertaining to his post-service achievements, but provided no other 
evidence or letters of reference in support of clemency determination.  The Board found 
no evidence that the applicant was not a saxophone player; the orders awarding a 
Secondary MOS of 02L10 was to a different individual, not the applicant.  The Board 
determined by preponderance of evidence that the 02L 10 entry on his DD Form 214 
was in error.  One member found sufficient evidence to grant the applicant’s requested 
upgrade; the Board majority did not find sufficient evidence to grant clemency or to 
overcome his misconduct and 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 partial 
relief was warranted.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:X	GRANT FULL RELIEF

:X	:X	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
his DD Form 214 for the period of service ending 18 December 1987 as follows:

     - Item 11 (Primary Specialty Number) – Remove “S 02L100000 1 Years 6 Months 
Saxophone Player”.

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrade of his character of service to Honorable.


	  
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 (Certificate of Release or 
Discharge from Active Duty), for the period ending 18 December 1987, is missing 
important entries that affect his eligibility for post-service benefits.  As a result, amend 
item 18 (Remarks) of the DD Form 214 by deleting the entry "IMMEDIATE 
REENLISTMENT THIS PERIOD: 820628 TO 860410"; and by adding the entries:

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 820628 UNTIL 850410
*	IMMEDIATE REENLISTMENT THIS PERIOD: 820628 TO 850410; 850411 TO 
871218


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 635-5 (Personnel Separations – Separation Documents) prescribes 
the separation documents prepared for Soldiers upon retirement, discharge, or release 
from active military service or control of the Army.  It establishes the standardized policy 
for preparing and distributing the DD Form 214.  It states the DD Form 214 provides a 
brief, clear-cut record of active Army service at the time of release from active duty, 
retirement, or discharge.
	
	a.  Paragraph 1-4b(5) of the regulation in effect at the time stated that a DD Form 
214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment 
in the Regular Army.
	
	b.  Paragraph 2-4h(18) of the regulation currently in effect states that item 18 
documents the remarks that are pertinent to the proper accounting of the separating 
Soldier's period of service.  Subparagraph (c) states that:

		(1)  For enlisted Soldiers with more than one enlistment period during the time 
covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" 
and specify the appropriate dates.  

		(2)  For Soldiers who have previously reenlisted without being issued a  
DD Form 214 and who are later separated with any characterization of service except 
honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of 
service which DD Form 214 was not issued) UNTIL (date before commencement of 
current enlistment)."  Then, enter the specific periods of reenlistments as prescribed 
above.

	c.  Since 1 October 1979, military personnel discharged for the purpose of 
immediate reenlistment are no longer issued a separate DD Form 214.

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.  Chapter 14 of this regulation 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, conviction by civil 
authorities, desertion, or absences without leave.  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 
considered appropriate.  However, the separation authority may direct a general 
discharge if such is merited by the Soldier's overall record.

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)	 AR20190008227

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