IN THE CASE OF: BOARD DATE: 6 January 2021 DOCKET NUMBER: AR20190009297 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge, and correction of the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty), to show he was discharged by Secretarial Authority instead of for misconduct. 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 30 June 2019 * counsel's 14-page brief with attachments * Attachment 1 – DD Form 214, for the period ending 19 April 1989 * Attachment 2 – personal statement * Attachment 3 – family photos * Attachment 4 – seven character statements * Attachment 5 – awards and certificates * Attachment 6 – 21 DA Forms 4856 (General Counseling Form) * Attachment 7 – administrative separation action, 31 March 1989 * Attachment 8 – Article 81, UCMJ, Conspiracy * Attachment 9 – Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), extract * Attachment 10 – Army Discharge Review Board (ADRB) decision * Attachment 11 – Undersecretary of Defense Memorandum for Secretaries, dated July 25, 2018 * Not listed in counsel's brief but submitted as a part of attachment 1: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * Standard Forms (SF) 88 (Report of Medical Examination) and 93 (Report of Medical History), dated 11 April 1989 * DA Form 3822-R (Mental Status Evaluation), dated 12 April 1989 * DD Form 215 (Correction to DD Form 214), dated 9 September 1994 * DA Form 2-1 (Personnel Qualification Record – Part II) 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 recounts his personal history and early period of service; his training, awards, and certificates; the circumstances that led to his discharge; and his post- service employment. He made a bad choice when he listened to a noncommissioned officer (NCO) in 1988, who asked him to do him a favor by bringing a package back from. He did not agree to do this as he felt something was not right about the request. This was the biggest mistake of his life and he regrets it to this day. 3. Counsel recounts the applicant's service history, noting his promotion to the rank/grade of sergeant (SGT)/E-5 and his award of three Army Achievement Medals. Counsel contends: a. The charge of wrongfully conspiring to possess and distribute a controlled substance was and is legally insufficient and the ADRB acknowledged this fact when it removed the term "Serious Offense" from his DD Form 214. b. Post-service, the applicant has worked for the, including work with the World Trade Center for cleanup operations. He now suffers from asthma, bronchitis, and allergies due to the toxins he inhaled at the site. He has been married for 17 years with two sons and a daughter, who is currently serving on active duty in the Army. b. The 2018 Department of Defense (DoD) guidance, referred to as the "Willkie memo," states that individuals with convictions could have their records expunged, in effect, erasing their criminal convictions so that prospective employers are not aware of their criminal history. However, those who enlisted in the Armed forces to serve their country, who then due to unfortunate circumstances ended up being discharged under unfavorable conditions, are forever scarred by the ineradicable stigma of their discharge. The Willkie memo closes the gap to help those veterans. It has been over 30 years since the applicant was discharged in April 1989. He has paid the price for his discharge for over 30 years. 4. The applicant enlisted in the Regular Army on 6 December 1983. 5. Prior to the action that led to the applicant's discharge, he was promoted to the rank/grade of SGT/E-5 and was awarded two Certificates of Achievement, four Army Achievement Medals, and an Army Good Conduct Medal. 6. The applicant provides 12 General Counseling Statements, for the period 30 September 1987 and 30 January 1989, of a complementary or general nature and 9 negative counseling statements for offenses including his failure to go to his place of duty (3), failure to pay just debts (2), failure to obey standing orders (2), and related to his drug charge (2). 7. The applicant's unit commander notified the applicant on 31 March 1989, of his intent to initiate separation proceedings against the applicant under the provisions of Army Regulation 635-200, Chapter 14, due to the applicant wrongfully conspiring to possess and distribute a controlled substance. The available record does not include any documentation or specifics related to the origin of these charges. 8. The applicant consulted with legal counsel on 6 April 1989. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He requested to have his case heard by a board of officers, to personally appear with counsel before the board and submit a statement on his own behalf. d. In his statement the applicant averred that he never hangs out with anyone who had dealing with drugs, at no time did he agree to commit a crime or admit to doing so. He has always been straight and strong NCO, all he wishes for is a fair chance prove the mistake was a misunderstanding and he will continue to be the professional NCO that he is expected to be. 9. The applicant underwent a medical examination on or about 11 April 1989, which found no abnormalities warranting separation consideration under disability provisions. 10. The applicant underwent a mental status evaluation on or about 12 April 1989, which found no psychiatric or mental health issues and cleared him for any administrative actions deemed appropriate. 11. The applicant's unit commander formally recommended his separation from service under the provisions of Army Regulation 635-200, Chapter 14. The separation authority approved the applicant's discharge on 13 April 1989, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. 12. The applicant was discharged on 19 April 1989, under the provisions of Army Regulation 635-200, paragraph 14-12c. His DD Form 214 confirms his service characterization was under honorable conditions (general) for misconduct – commission of a serious offense). 13. The ADRB denied the applicant's request for a discharge upgrade on 21 July 1994 but removed the term "commission of a serious offence" under the current standards provision of the applicable Army regulation. 14. The applicant and counsel provide letters of support that describe the applicant as a reliable, honest, well organized, and agreeable person. He is considered a man of integrity, with a strong work ethic who carried out all assignments without question and accomplished them to the best of his abilities. It was noted that he had worked on the World Trade Center following the terrorist attack on September 11, 2001, doing first survivor search and then cleaning up the site. 15. The Board may consider the applicant's awards and statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 counsel’ statement, the applicant’s record of service, and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. He was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board determine there was insufficient evidence to support a change to the applicant’s separation code. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 5–3 (Secretarial plenary authority) states: (1) Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. (2) Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190009297 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190009297 6 ABCMR Record of Proceedings (cont) AR20190009297 5