IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20190011956 APPLICANT 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 19 August 2019 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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, at the time of his discharge there was extensive use of marijuana in his platoon. He did partake but feels he was unjustly singled out due a prior misunderstanding with his company commander. He was tested three times in a month and wasn't allowed to clean out his system or seek counseling. 3. The applicant enlisted in the Regular Army on 2 November 1983. 4. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 11 February 1984, for wrongfully using marijuana, between on or about 20 October 1984 and 30 October 1984 * on 10 June 1985, for wrongfully overindulging in intoxicating liquor or drugs, and being incapacitated for the proper performance of his duties [noted elsewhere as drunk on duty], on or about 29 May 1985 * on 17 July 1985, for wrongfully using marijuana, between on or about 6 May and 16 May 1984 5. The applicant was afforded a mental status evaluation on 5 August 1985, which found no abnormalities and cleared him to participate in any proceedings deemed appropriate by his Command. 6. The applicant's unit commander notified the applicant on 9 August 1985 of his intent to initiate separation proceedings against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12d(2), by reason of being drunk on duty and his positive urinalysis result. 7. The applicant consulted with legal counsel on 13 August 1985. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He was advised he could submit any statements he desired in his own behalf but waived this option. 8. The applicant's unit commander formally recommended the applicant's separation from service on 9 August 1985, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12. The separation authority approved the recommended discharge on 21 August 1985. 9. The applicant was discharged on 11 September 1985, under the provisions of Army Regulation 635-200, paragraph 14-12c. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms his service was characterized as under honorable conditions (general). His DD Form 214 further shows: * he was discharged in the rank/grade of private/E-1 * he had 1 year, 10 months, and 10 days of creditable active duty service * he had no lost time * he received no personal awards * his narrative reason for separation was misconduct - drug abuse 10. The applicant infers that he was discharged for testing positive for illegal drug use three times in a month while not being afforded counseling. The available record shows his first positive drug NJP was over a year prior to his second drug NJP, and there is no evidence of additional positive drug findings. He is also shown to have had drug and alcohol counseling. 11. The Board may consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is 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, 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. Abuse of illegal drugs is considered serious misconduct. 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) AR20190011956 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011956 5 ABCMR Record of Proceedings (cont) AR20190011956 4