ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 27 September 2019 DOCKET NUMBER: AR20190009885 APPLICANT REQUESTS: The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his characterization of service as honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two NGB Forms 22 (Report of Separation and Record of Service) * Two NGB Forms 22A (Correction to NGB Form 22) * Two DD Forms 214 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 (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 he received his general discharge for smoking marijuana. Since marijuana use has been legalized in Colorado, Michigan, Maine, Alaska, Washington, Oregon, and Nevada, he believes his discharge should be changed. 3. On 1 September 1988, with previous service in the Army National Guard the applicant enlisted in the Regular Army for a period of four years. 4. Four General Counseling Forms, dated between February and March 1989, show he was counseled for various reasons to include: Failure to shave, failure to report to his appointed place of duty at the time prescribed, lack of initiative, poor job performance, failure to report to extra duty, and for discharge under the provisions of chapter 13, Army Regulation (AR) 635-200. 5. In February 1989 [date member signed not available], the applicant received non- judicial punishment (NJP) for failure to go to his appointed place of duty at the time prescribed on 15 February 1989; disobeying a lawful order given by a noncommissioned officer (NCO) to get a haircut, shave, polish his boots and not to be late to formation on 2 February 1989; willfully disobeying a lawful order given by an NCO to shave on 14 February 1989. 6. On 14 February 1989, a separation medical examination for the purpose of being separated, found the applicant qualified for separation. On the same date a mental status evaluation cleared him for administrative action deemed appropriate by his chain of command. 7. On 19 March 1989 he received NJP for failing to obey the Commanders Policy on Alcohol Beverage Control by consuming alcohol while in a field status on 18 October 1988. His punishment consisted of a forfeiture of pay, reduction to the rank of private/E-1, extra duty, and restriction. 8. A DD Form 261 (Report of Investigation Line of Duty (LOD) and Misconduct Status), dated 11 June 1989, shows the applicant spent five hours in the Intensive Care Unit, Fifth General Hospital, Germany, on 5 March 1989, for treatment of wounds he received during an altercation with a private. His injuries included a closed head injury, multiple superficial abrasions, and human bite wounds. This investigation found that the applicant was the victim. The LOD shows the applicant was involved in a fight with another Soldier as a result of being intoxicated after duty hours; unit was in a field training exercise. 9. On 13 April 1989, the applicant's commander notified him he was initiating action to discharge him under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2a for unsatisfactory performance with a general discharge under honorable conditions based on the applicant's unsatisfactory duty performance, failure to report for extra duty, and failure to repair. The commander advised the applicant of his available rights. a. On 18 April 1989, the applicant acknowledged notification, waived further counsel, and elected not to submit statements in his own behalf. On 20 April 1989, the applicant's commander recommended he be separated from the Army prior to the expiration of his term of service for unsatisfactory performance b. On 21 April 1989, the appropriate authority waived further rehabilitation requirements and directed the applicant be issued a general discharge under honorable conditions. 10. On 9 June 1989, the applicant was discharged accordingly. He completed 9 months, and 10 days of net active service that was characterized as under honorable conditions. The DD Form 214 he was issued shows he was awarded the Army Service Ribbon and Sharpshooter Badge with Rifle Bar. 11. Army Regulation 635-200, Chapter 13, paragraph 13-2a provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely * an honorable or a general characterized was issued 12. The applicant’s provides and his record contains the following documents: * NGB Form 22 showing he completed honorable service in the FLARNG from 27 February 1987 to 31 August 1988 * DD Form 214, showing he served in the RA from 27 February to 27 June 1987, for completion of MOS 76Y training, this service is characterized as “Entry Level Status” * NGB Form 22 showing he served in the FLARNG from 20 April 1994 to 27 July 1995, this service is characterized as general, under honorable conditions * Two NGB Forms 22A showing several corrections were made to the above two NGB Forms 22 13. Regarding the applicant’s contentions that he received his general discharge for smoking marijuana, as a result of the legalization of marijuana use in Colorado, Michigan, Maine, Alaska, Washington, Oregon, and Nevada, his discharge should be upgraded. There is nothing in the applicant’s available record to show he was discharged for smoking marijuana. Even if so, the change of a State Law, involving the smoking of marijuana does not affect military policy or his discharge. 14. The applicant completed 9 months and 10 days of military service. During this short period of service, he received four counseling statements for unsatisfactory duty performance, failing to report for extra duty, disobeying lawful orders, and a company grade Article 15 for failure to repair. 15. Regarding the applicant's contention that he was discharged for smoking marijuana; his record is void of evidence indicating the usage or possession of marijuana. Additionally, the legalization of marijuana within the States does not affect military regulation and/or policy. His record shows he was discharged for unsatisfactory performance and completed 9 months and 10 days of his contractual obligation. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency 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 record and length of service, the frequency and nature of his misconduct, and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements of 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 that 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, with the exception of the correction stated in the Administrative Note(s) below, 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): A review of the available evidence shows while in the ARNG the applicant received a DD Form 214 for the period of service ending 870627 for successful completion of training and award of MOS 76Y with an administrative error in the characterization of service showing as "entry level status." a. Regulatory guidance in effect at the time he was separated stated an uncharacterized separation is an entry-level separation; for Soldiers ordered to initial ADT, entry-level status terminates 180 days after beginning training. However, current guidance states Reserve Component Soldiers completing active duty that results in the award of an MOS, even when the active duty period was less than 90 days (for example, completion of the advanced individual training component of ARNGUS Alternate Training Program or USAR Split Training Program) will receive a character of service of Honorable unless directed otherwise by the separation approval authority. b. The available evidence shows the applicant was called to active duty for training and awarded an MOS. Although his DD Form 214 properly reflects his characterization of service as "uncharacterized" in accordance with regulatory guidance in effect at the time, based on current guidance and in the interest of equity the characterization of service should read as honorable. 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 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 13 provided for separation of individuals due to unsatisfactory performance when, in the commander's judgment: * the individual would not become a satisfactory Soldier * retention would have an adverse impact on military discipline, good order, and morale * the service member would be a disruptive influence in the future * the basis for separation would continue or recur * the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely b. Service of Soldiers separated because of unsatisfactory performance was characterized as honorable or under honorable conditions. c. 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) in effect at the time of his separation stated an uncharacterized separation is an entry-level separation. For Soldiers ordered to initial ADT, entry-level status terminates 180 days after beginning training. 4. Army Regulation 635-8 (Separation Processing and Documents) currently in effect, prescribes the transition processing function of the military personnel system. The regulation contains guidance in stating for Block 24 (Characterization of Service) the correct entry is vital since it affects a Soldier’s eligibility for post-service benefits. Characterization or description of service is determined by directive authorizing separation; “When a Reserve Component Soldier successfully completes initial active duty training the character of service is honorable unless directed otherwise by the separation approval authority. 5. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. 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 may be warranted based on equity or relief from injustice. 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 based on 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 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) AR20190009885 2 1