IN THE CASE OF: BOARD DATE: 7 October 2019 DOCKET NUMBER: AR20190009110 APPLICANT REQUESTS: The applicant requests an upgrade of his characterization of service from a general, under honorable conditions to an honorable. 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 was discharged for two positive urinalysis for marijuana; however, both test were given in a seven day period and there should have been more time between testing. He believes it was double jeopardy. 3. On 6 January 1982, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 4 years. 4. The applicant record contains four DA Forms 4856 (General Counseling Form), during the period 28 August 1984 to 27 November 1984 for failing to be at his appointed place of duty, failing to sign out prior to leaving the range, and his performance where the counselor recommended not to promote the applicant on two occasions. He also received one initial platoon counseling on this form. 5. A disposition form shows that the commander requested Alcohol and Drug Abuse Prevention Control Program (ADAPCP) services for the applicant and on 2 January 1985 the counselor determined that he would not be a good candidate for ADAPCP because of his lack of motivation and no desire for self-insight; he did not want to change. 6. On 2 October 1984, he accepted nonjudicial punishment (NJP) for wrongfully using marijuana on 31 August 1984. 7. He was barred from reenlistment and the bar to reenlistment certificate stated the applicant had one record of NJP, three counseling: two counseling for failing to report and one for positive urinalysis for a second time (counseled on 16 October 1984). The applicant elected not to submit a statement in his own behalf. 8. On 10 January 1985, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b, a pattern of misconduct, and paragraph 14-12c, commission of a serious offense. 9. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by his consulting counsel of the basis for the contemplated action. He elected not to submit statements in his own behalf. 10. The record is void of a mental status evaluation or a medical examination. 11. On 20 February 1985, the applicant was discharged, under paragraph 14-12d, abuse of illegal drugs, a separation authority and narrative reason for separation, which were different from what was directed by the separation authority (i.e., 14-12a (minor disciplinary infractions) or 14-12b (a pattern of misconduct)). His service was characterized as under honorable conditions. He completed 3 years, 1 month, and 15 days of net active service this period, with 1 year, 11 months, and 27 days of Foreign Service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized: * Army Service Ribbon * M-16 Rifle Sharpshooter Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Pistol (45 cal.) Expert Marksmanship Qualification Badge * Army Good Conduct Medal * Army of Occupation Medal 12. The applicant states he was discharged for two positive urinalysis for marijuana; however, both test were given in a seven day period and there should have been more time between testing. He believes it was double jeopardy. The record shows the applicant enlisted at the age of 18 years old; he was counseled on four occasions for his conduct, he accepted one NJP, and he tested positive for marijuana on two occasions. He served 3 years, 1 month, and 15 days of his 4 years contractual obligation. 13. AR 635-200, Chapter 14 (Misconduct), paragraph 14-12a (minor disciplinary infractions), 14-12b (a pattern of misconduct), 14-12c (commission of a serious offense), paragraph 14-12d (abuse of illegal drugs), are separations for misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 5-3 (Secretarial Authority), states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 14. 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 and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the Commander’s request for ADA PCP services, the frequency and nature of his misconduct, his bar to reenlistment, the reason for his separation and whether to apply clemency. The Board found no in-service mitigating factors for the 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. 2. After reviewing the application and all supporting documents, the Board found 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. Paragraph 2-1 stated when a member is subject to separation for more than one reason, the basis for each reason must be clearly established. If a reason for separation set forth in the notice of proposed action requires processing under the Administrative Board Procedure, the entire matter will be processed under section III, this chapter (Administrative Board Procedure). If more than one reason for separation is approved, the guidance on characterization that provides the greatest latitude may be applied. When there is any other conflict between a specific requirement for one reason and a general requirement for another reason, the specific requirement will be applied. If a conflict in procedures cannot be resolved based on the above, the requirement most favorable to the member will be used. b. Paragraph 3-7 stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. (1) Paragraph 14-12a, minor disciplinary infractions, provided for the separation of a Soldier with a pattern of misconduct consisting soley of minor military disciplinary infractions. (2) Paragraph 14-12b, a pattern of misconduct, provided for the separation of a Soldier due to discreditable involvement with civil or military authorities and conduct prejudicial to good order and. discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. (3) Paragraph 14-12c, commission of a serious offense, provided for the separation of a Soldier due to commission of a serious military or civil offense. If the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related- offense under the Manual for Court- Martial. An absentee returned to military control from a status of absent without leave or desertion may be separated for commission of a serious offense. (4) Paragraph 14-12d, abuse of illegal drugs, provided Soldiers who are first time offenders and in the grades of E-5 to E-9 or second time offenders in the grades of E-1 to E-9 whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against, whom separation action will not be initiated under the provisions of chapter 9, alcohol or other drug abuse rehabilitation failure, or chapter 14- 5, conviction by civil court, will be processed for separation under a, b, or c. First time drug offenders in the grades of E-1 to E-4 may be separated as appropriate. Abuse -of illegal drugs is serious misconduct. Separation action normally will be based upon commission of a serious offense, 14-12c; however relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse, offense maybe combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under 14-12a or 14-12b, as appropriate. d. Paragraph 5-3 (Secretarial Authority), states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 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// ABCMR Record of Proceedings (cont) AR20190009110 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009110 7 ABCMR Record of Proceedings (cont) AR20190009110 4