ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 December 2019 DOCKET NUMBER: AR20190011035 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions. 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 (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: a. During this time in his life, his mother was diagnosed with terminal cancer and only had a short time to live. She passed within a month of his discharge. b. Not knowing what to do, he started to use marijuana to help him cope with pain. He realizes now that he should have sought assistance. He has been drug free since then. 3. The applicant enlisted in the Regular Army on 4 March 1988. 4. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) shows he was flagged for entrance in the Army Weight Control Program effective 4 November 1988. 5. His records contain numerous Army and Air Force Exchange Service (AAFES) Forms 7200-75 (Dishonored Check Notification) which show he uttered checks with insufficient funds to AAFES on the following dates for the following amounts: * 15 November 1988, $32.55 * 18 November 1988, $26.64 * 21 November 1988, $23.60 * November 1988, $22.95 6. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) shows he accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ on 17 December 1988 for using cocaine at some unknown location between 1 August 1988 and 1 September 1988. 7. A DA Form 4126-R (Bar to Reenlistment Certificate) shows he was barred from reenlistment on 1 February 1989 based on the December 1988 NJP for illegal substance use. 8. His records contain numerous DA Forms 4856 (General Counseling Form) showing he received counseling on the following dates for the following reasons: * 10 February 1989, for Army Physical Fitness Test (APFT) failure on 2 February 1989; he was enrolled in company remedial physical training for retesting in 30 days * 10 February 1989, for a dishonored check notification from AAFES dated 6 February 1989; he was referred to Army Community Services for budget counseling * 23 and 24 February 1989, for numerous additional checks returned for insufficient funds and advised that involuntary separation would be initiated if he did not improve his conduct within 90 days 9. A DA Form 3622-R (Report of Mental Status Evaluation), shows the applicant underwent a mental status evaluation on 3 March 1989. He was found to have the mental capacity to understand and participate in the proceedings, was mentally responsible, and met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The remarks state the applicant had a very strong desire to remain in the service. 10. An additional DA Form 4856 shows he was counseled on 29 June 1989 for submitting another positive cocaine urinalysis. The same form shows he was again counseled on 27 July 1989 that the above infraction would be submitted to the battalion commander for UCMJ action and potential initiation of separation proceedings. 11. On 16 August 1989, the applicant was notified by his immediate commander of his initiation of action to discharge him under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), chapter 14 for wrongfully using cocaine on two occasions and writing numerous bad checks knowing he had insufficient funds. His commander recommended his service be characterized as general under honorable conditions and advised the applicant of his right to consult with counsel, and submit statements in his own behalf. 12. On 18 August 1989, the applicant acknowledged receipt of notification of his proposed separation. He acknowledged being advised by counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14. He did not submit statements in his own behalf. 13. On 18 August 1989, his intermediate commander recommended approval of the applicant’s separation with the issuance of a General Discharge Certificate. 14. A second DA Form 2627, shows he again accepted NJP under Article 15 of the UCMJ on 29 August 1989 for using cocaine at some unknown location between 28 May 1989 and 28 June 1989, which was detected by a biochemical testing of a urine sample he submitted on 28 June 1989. 15. On 29 August 1989, the approval authority directed the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct – abuse of illegal drugs and directed the issuance of a General Discharge Certificate. 16. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged after 1 year, 6 months, and 4 days of net service on 7 September 1989, under the provisions of Army regulation 635-200, chapter 14, due to misconduct – abuse of illegal drugs. His service was characterized as general, under honorable conditions. BOARD DISCUSSION: 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, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XXX 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 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 (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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable 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 a relevant error or injustice was committed, and uniformity of punishment. 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 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, and convictions by civil authorities. 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 for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. 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. c. 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 NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190011035 5 1