BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20190011041 APPLICANT REQUESTS: The applicant requests upgrade of his general under honorable conditions discharge to an honorable discharge. 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 there was no drug or alcohol abuse, at any time during his service with the Army. There was also no misconduct. 3. On 19 August 1986, at the age of 34 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. A Statement of Medical Examination and DDTY (Duty) Status shows the applicant was treated at the hospital at Fort Benning, GA while attending one station unit training (OSUT). He was treated for an injury to his knee, arm, and leg. He was injured when a military vehicle in which he was a passenger overturned. His injuries were considered to be in line of duty and a formal line of duty investigation was not required. After completing OSUT, the applicant was assigned overseas to Hawaii. 5. The record shows the applicant accepted nonjudicial punishment (NJP) on: * 18 March 1987 for disobeying a lawful order from a noncommissioned officer (NCO); the applicant elected to appeal and the appeal was denied * 28 May 1987 for wrongfully using cocaine; he elected not to appeal 6. His pay was garnished for failure to provide child support to his dependent daughter. The applicant provided a statement regarding his non-payment of child support. 7. He was counseled on nine occasions during the period 20 January 1987 to 2 June 1987 for, but not limited to: missing formation, being almost disrespectful in demeanor when speaking with NCOs, failing to be at appointed place of duty (going to the hospital for an appointment when he did not have one scheduled), monthly performance for February 1987, monthly counseling for the month of March 1987, and him being considered for Chapter 14-12b, pattern of misconduct. 8. On 2 April 1987, the applicant's immediate commander requested that he receive a medical board evaluation. He stated that the applicant had difficulty during basic training and recently could not carry a rucksack, lift over 20 lbs (pounds) or run. He could not perform as an Infantryman. He doubted if the applicant could perform his military occupational specialty duties. The record is void of a medical evaluation board. 9. On 18 June 1987, 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- 12c, for commission of a serious offense. 10. 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, understood his rights, and elected to submit statements in his own behalf (if submitted, statements are unavailable for review). 11. The applicant’s immediate commander recommended approval of the separation, with a general under honorable conditions discharge and on 19 June 1987, the appropriate commander approved the recommendation for separation and directed that the applicant be issued a General Discharge Certificate. 12. On 7 December 1990, the applicant was discharged accordingly. His service was characterized as under honorable conditions (general). He completed 10 months, and 8 days of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was awarded or authorized: * Army Service Ribbon * Hand Grenade Sharpshooter Marksmanship Qualification Badge * M-16 Rifle Sharpshooter Marksmanship Qualification Badge 13. His record is void of a medical examination and a mental status evaluation. A mental status evaluation is required for Soldiers separated under AR 635-200, paragraph14-12c. 14. The applicant states there was no drug or alcohol abuse at any time during his service with the Army. There was also no misconduct. His record shows he enlisted at the age of 34 years old, his wages were garnished because of failure to pay child support, he was counseled on nine occasions regarding his misconduct, he accepted two NJPs, one with the offense of wrongfully using cocaine. He served 10 months and 8 days of his 3 years contractual obligation. The immediate commander recommended the applicant for a medical board evaluation. The record is void of a medical board evaluation. 15. AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, in effect at the time, was a separation for commission of a serious offense. Paragraph 14-12d, abuse of illegal drugs, separation action normally will be based upon commission of a serious offense, paragraph 14-12c. The separation reason will be "misconduct––abuse of illegal drugs." The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14In 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. 16. 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 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 or letters of reference in support of a clemency determination. The Board considered the totality of the applicant’s misconduct and, 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 but determined that the narrative reason should be changed as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 26 June 1987 as follows: - Item 28 (Narrative Reason for Separation) – “Pattern of misconduct” vice “Misconduct – Drug Abuse.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the Character of Service to honorable. 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. 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. 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. 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. b. Paragraph 14-12c 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 AWOL or desertion may be separated for commission of a serious offense. Paragraph 14-12d, abuse of illegal drugs, separation action normally will be based upon commission of a serious offense, paragraph 14-12c. The separation reason will be "misconduct––abuse of illegal drugs." 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 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 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. 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) AR20190011041 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011041 6 ABCMR Record of Proceedings (cont) AR20190011041 4