IN THE CASE OF: BOARD DATE: 17 January 2020 DOCKET NUMBER: AR20190011477 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC93-10017 on 6 April 1994. Specifically, he requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. 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 31 July 2019 * two Certificates of Achievement, dated 16 April 2018 and 31 August 2018 * Letter of Appreciation, dated 8 October 2018 * two Certification Certificates, dated 20 November 2018 and 10 March 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC93- 10017 on 6 April 1994. 2. The applicant states that after having served 19 years consecutively without incident, he was discharged for an unjust test that ended his career. He has and is presently serving as a contractor in Iraq and Afghanistan, which requires various degrees of tests to acquire a security clearance. Since the incident, he has served his country honorably as a government contractor in support of the U.S. military. 3. The applicant enlisted in the Regular Army on 25 February 1975. He reenlisted on 30 June 1981, on 22 June 1984, and again on 23 March 1987. 4. The applicant accepted non-judicial punishment on 26 October 1989, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana between on or about 25 July 1989 and 25 August 1989. 5. The applicant's immediate commander notified the applicant on 13 December 1989 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct – abuse of illegal drugs. 6. The applicant consulted with counsel on 29 December 1989 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He acknowledged receipt of the proposed separation notification and requested a personal appearance and consideration of his case by an administrative separation board. 7. The applicant's immediate commander formally recommended his separation on 29 December 1989, under the provisions of Army Regulation 635-200, paragraph 14-12c. 8. The applicant appeared before an administrative separation board on 11 June 1990. The board unanimously recommended the applicant’s separation on 12 July 1990 with the issuance of a general discharge, based on serious misconduct. 9. The separation authority accepted the separation board's recommendation, approved the recommended discharge on 10 October 1990, and directed the issuance of a DD Form 257A (General Discharge Certificate). 10. The applicant was discharged on 8 November 1990. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – abuse of illegal drugs. His service was characterized as under honorable conditions (general). His DD Form 214 further shows he was awarded or authorized the Army Commendation Medal (2nd Award), Army Achievement Medal, and the Army Good Conduct Medal (5th Award), among other service medals. 11. The applicant provides certificates of achievement and a letter of appreciation in recognition of his exemplary performance in support of overseas contingency operations. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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, 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 or post- service mitigating factors to support an upgrade of his general discharge. 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. The Board concurred with the matters addressed in Administrative Note(s) below. 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: Other than the matters addressed in Administrative Note(s) below, the Board determined 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 otherwise 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 applicant's record shows his DD Form 214, for the period ending 8 November 1990, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 750225 UNTIL 870322 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 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. a. Paragraph 1-4b(5) of the regulation in effect at the time stated that a DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Paragraph 2-4h(18) of the regulation currently in effect states that item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service. Subparagraph (c) states that for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. c. Since 1 October 1979, military personnel discharged for the purpose of immediate reenlistment are no longer issued a separate DD Form 214. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Chapter 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave. 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. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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) AR20190011477 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011477 5 ABCMR Record of Proceedings (cont) AR20190011477 4