ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  10 October 2019 DOCKET NUMBER:  AR20190009648 


APPLICANT REQUESTS: 

.Upgrade of his General (Under Honorable Conditions) discharge from the UnitedStates Army Reserve (USAR) given on 15 November 1999 for a positiveurinalysis test for cocaine to an honorable discharge (the applicant mistakenlystated that this was an under other than honorable discharge)

.The issuance of a DD Form 214 (Certificate of Release or Discharge from ActiveDuty) for his U.S. Army Reserve (USAR) service ending 15 October 1999



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Army Discharge Review Board)

.National Personnel Records Center (NPRC) letter

.National Guard Bureau (NGB) Form 22 (Report of Separation and Record ofService)



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto).  However, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect, he served proudly for over 19 years; he was a vehiclemechanic and was always a perfectionist with his job.  He got involved with a woman hewanted to marry; they are no longer together and he does not even know where shelives.  One night at a party, she asked him to take some drugs with her; later, his unitconducted a surprise drug test and he came up positive for drugs.  He is not a drug userand never was; nonetheless, they discharged him based on the urinalysis.  He contendshe has worked his whole life, always paid his taxes, and has never had any problemswith the law.  He currently needs medical care, but the Department of Veterans Affairs(VA) denied him of benefits because of his discharge.

3.The applicant provides documents from his military service record and a letter fromNPRC in response to his request for a DD Form 214 for his reserve service ending 15October 1999.  The NPRC responded that a DD Form 214 (Report of Separation) wasnot issued because for that period of service since the applicant had no active dutyservice for a period of 90 days or more.

4.The applicant's service records show:

a.That he had prior enlisted service in the Puerto Rico Army National Guard from
9 April 1978 to 8 April 1984 with a period of Initial Active Duty for Training (IADT) at Fort Dix from 27 August 1978 to 20 December 1978 both of which were honorable.  On  
10 September 1988, the applicant enlisted into the USAR as a specialist/E-4 for  
6 year term.  On 9 July 1994, he immediately reenlisted for an additional 6-year term. 

b.On 17 May 1998, the applicant's unit conducted a urinalysis test; on 22 July1998, the applicant's USAR Regional Support Command (RSC) advised his commander the applicant had tested positive for cocaine. 

c.On 10 May 1999, the applicant's USAR commander notified him of his intent toseparate the applicant under the provisions of paragraph 7-11c.1. (Commission of a Serious Offense – Abuse of Illegal Drugs), chapter 7 (Misconduct), Army Regulation (AR) 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel).  The reason for this proposed action was the applicant's positive urinalysis results for cocaine. 

d.On 11 July 1999, after consulting with counsel, the applicant acknowledgedcounsel had advised him of the basis for, and the effects of the separation action; counsel also explained the applicant's rights and the impact of waiving those rights.  He requested to personally appear with counsel before an administrative separation board and elected not to make a statement in his own behalf. 

e.On 8 September 1999, the applicant's RSC notified him the RSC commander hadordered the convening of a board of officers to determine if the applicant should be separated; if separated, the applicant could receive an under other than honorable conditions character of service.   

f.On 18 September 1999, after consulting with counsel, the applicant voluntarilywaived consideration of his case by an administrative separation board contingent upon receiving a general discharge under honorable conditions.  At some point prior to 15 October 1999, the separation authority accepted the applicant's conditional waiver and directed that the applicant receive a general under honorable conditions discharge.  Headquarters, 65th U. S. Army Regional Support Headquarters issued orders on 15 October 1999 showing that the applicant was discharged from the USAR with a general discharge and provided a general discharge certificate, DD Form 257A. 

5.The applicant contends, in effect, he used illegal drugs one time with someone who,at the time, he intended to marry; they are no longer together.  He asserts he is notnow, nor has he ever been a drug user; he served proudly in the military for over19 years.  During the applicant's era of service, abuse of illegal drugs was consideredserious misconduct.  Commanders had the option of separating Soldiers under thegrade of E-5, if they had less than 3 years total military service and were first-timeoffenders.  However, Soldiers with 3 or more total years of military service wererequired to be separated upon the discovery of a drug offense.

6.In regards to the applicant requesting an upgrade so that he may receive benefits.The ABCMR is not authorized to grant requests for upgrade of discharges solely for thepurpose of making the applicant eligible for veterans' benefits; however, in reaching itsdetermination, the Board can consider the applicant's petition, his service record, andhis statements in light of the published guidance on equity, injustice, or clemency.

7.As to the applicant's request to be issued a DD Form 214 for his service in theUSAR, AR 635-8 (Separation Processing and Documents), currently in effect, states theDD Form 214 is given for periods of active duty.  A DD Form 214 is not given for USARduty.  USAR Soldiers receive only discharge orders and a discharge certificate.

BOARD DISCUSSION: 





1.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.  The Board carefully considered the applicant's request,supporting documents, evidence in the records and published DoD guidance forconsideration of discharge upgrade requests.2.The applicant was discharged for a positive urinalysis test for cocaine in accordancewith regulations.  The regulations authorized a discharge under other than honorableconditions or a general discharge depending on the applicant’s military record.  TheBoard found insufficient evidence of in-service mitigation for the applicant's misconduct.It is apparent that his 18 years of honorable service was considered and the separatingauthority directed that the applicant be given a general discharge, under honorableconditions.  The board found no evidence of error or injustice.3.The Board found the applicant submitted no evidence of post-service achievementsor letters of reference in support of a clemency determination.4.The applicant requested a DD Form 214 for his USAR service.  In accordance withregulations, a DD Form 214 is only given for periods of active duty therefore a DD Form214 is not issued for his USAR service which ended on 15 October 1999.  His USARhonorable discharge orders and certificate (DD Form 257a) are the only documentsprovided.




BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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. 


X 


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 militaryrecords must be filed within 3 years after discovery of the alleged error or injustice.  Thisprovision of law also allows the ABCMR to excuse an applicant's failure to timely filewithin the 3-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.AR 135-178, in effect at the time, prescribed policies and procedures for theseparation of Reserve Component Soldiers.

a.Paragraph 1-17b (1) (Types of Characterization or Description – Honorable).  Anhonorable character of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance, or otherwise was so meritorious that any other characterization would be clearly inappropriate. 

b.Paragraph 7-11c.1. (Commission of a Serious Offense – Abuse of Illegal Drugs).Abuse of illegal drugs was serious misconduct; although discharge action was to be based on the commission of a serious offense, relevant facts could mitigate the nature of the offense.  As such, a single drug offense could be combined with one or more disciplinary infractions and processed for separation under another of this provision's subparagraphs (i.e. subparagraph a (Minor Disciplinary Infractions) or b (A Pattern of Misconduct)).  Soldiers under the grade of E-5, or with less than 3 years total military service, could be processed for discharge, if they were first-time offenders; Soldiers with 3 or more total years of military service were required to be separated upon the discovery of a drug offense.  Commanders were to use the administrative board procedure for this provision, unless an under other than honorable conditions discharge was not warranted. 

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  BCM/NRs may grant clemency regardless of the type of court-martial.However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which maybe warranted based on equity or relief from injustice.  This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable relief authority.  In determining whether to grant relief on the basis of equity,injustice, or clemency grounds, BCM/NRs 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 arelevant error or injustice was committed, and uniformity of punishment.  Changes to thenarrative reason for discharge and/or an upgraded character of service granted solelyon equity, injustice, or clemency grounds normally should not result in separation pay,retroactive promotions, and payment of past medical expenses or similar benefits thatmight have been received if the original discharge had been for the revised reason orhad the upgraded service characterization.

4.AR 635-8, currently in effect, states the DD Form 214 is a summary of the Soldier'smost recent period of continuous active duty.  Separating USAR Soldiers who are noton active duty do not receive a DD Form 214.


//NOTHING FOLLOWS//