IN THE CASE OF: BOARD DATE: 27 July 2020 DOCKET NUMBER: AR20190013746 APPLICANT REQUESTS: The applicant requests reconsideration to upgrade his previously upgraded under honorable conditions (general) discharge to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-authored statement * Army Board for Correction of Military Records (ABCMR) Record of Proceedings for Docket Number AR20170019417 * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170019417 on 14 May 2019 and AR20080008526 on 26 August 2008. 2. The applicant states: a. He is asking for reconsideration of the application to seek approval for full relief. It is his understanding that the merits that were presented to this Board were sufficient in receiving partial relief. In that decision he is truly thankful. However, even with that decision, his participation in certain activities is restricted based on an uncategorized reflection of his behavior. This behavior existed for only 2 months of the 66 months of his service. It was mentioned in the decision that it was based on the overall service that he had given. It seems harsh to allow those 2 months to restrict those things that were worked and earned during such a disproportionate time of great service to the armed services. b. Please give reconsideration based on him not being able to be considered to participate in getting insurance benefits afforded to others who he has served with. His discharge restricts his ability to have the Veteran status on his driver's license. He hopes to hear something soon. As he reviews clemency for many in his State and gives his recommendation for the Governor, he fully understands the time it takes to review these requests. 3. On 15 June 1983, the applicant enlisted in the Regular Army (RA). He reenlisted in the RA on 9 June 1986 for 3 years and he extended for 15 months on 5 February 1987 to meet service remaining requirement with dependents in Belgium. 4. On 15 July 1988, the applicant's immediate commander notified him that action was being initiated to separate him under the provisions chapter 14, paragraph 14-12c of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), for misconduct due to abuse of illegal drugs. The reason for the proposed action was the applicant tested positive for cocaine on 21 June 1988. The commander recommended that he receive a discharge under other than honorable conditions (UOTHC). The commander advised the applicant of his right to: * consult with counsel and/or retain civilian counsel at no expense to the government * obtain copies of the documents that would be sent to the separation authority supporting the proposed separation action * request a hearing before an administrative board if you have 6 or more years of active and reserve military service at the time of separation * submit statements in his own behalf * waive any of the above rights * submit a conditional waiver of his right to have his case heard before an administrative separation board * undergo a complete medical examination and mental status evaluation in accordance with AR 40-501 (Standards of Medical Fitness) 5. The applicant's acknowledgement memorandum and exercise of his rights is not available for review. Nevertheless, evidence shows the applicant acknowledged notification of the separation action, consulted with legal counsel, requested a hearing by a board of officers and did not submit a statement in his own behalf. 6. On 26 July 1988, after consulting with his defense counsel, he changed his original decision and waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general discharge, and he did not submit statements in his own behalf. 7. On 29 July 1988, the applicant's immediate commander recommended that the applicant be separated from service prior to his expiration of his term of service, under the provisions of AR 635-200, chapter 14, paragraph 14-12c, misconduct and abuse of illegal drugs. 8. An Army Discharge Review Board (ADRB) Case Report and Directive shows on 2 August 1988 a medical examination cleared the applicant for separation, and a mental status evaluation psychiatrically cleared him for separation action deemed necessary by his chain of command. 9. On 5 August 1988, he received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine and dishonorably failing to pay debts on two occasions. His appeal was denied. 10. On 5 October 1988, the separation authority directed a board be convened in accordance with AR 635-200 to determine if the applicant should be separated from the Army. The separation authority indicated that after a thorough review of the circumstances presented in this case, he believed there was sufficient evidence to pursue separation action on the applicant for misconduct under the provisions of AR 635-200, chapter 14. The separation authority also disapproved the applicant's conditional waiver. 11. On 14 November 1988, after consulting with counsel, the applicant stated, in pertinent part, pursuant to the administrative separation proceedings under the provisions of AR 635-200, Chapter 14, he, under the advice of legal counsel, decided to have his case heard by an administrative separation board. 12. The administrative separation board was scheduled for 15 November 1988. Subsequent to the applicant's notification, he was sent back to the United States for emergency leave. He returned on 13 November 1988 and notified his chain of command that he intended to waive the administrative separation board before he departed for emergency leave. 13. On 1 December 1988, the separation authority approved the unconditional waiver and directed the applicant be separated under the provisions of AR 635-200, Chapter 14, due to misconduct - abuse of illegal drugs. He ordered the applicant be discharged with a characterization of service of under other than honorable conditions, and if not already accomplished, he would be reduced to the lowest enlisted grade. 14. On 27 December 1988, the applicant was discharged accordingly. He was discharged under the provisions of AR 635-200, paragraph 14-12c. He completed 5 years, 6 months, and 13 days of active service. His DD Form 214 shows he was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Army Achievement Medal * Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon * Sharpshooter Marksmanship Qualification Badge (M-16) 15. On 18 December 1989, the applicant requested an upgrade through the ADRB, and on 13 September 1991, the ADRB determined the applicant was property and equitably discharged. The request for a change in the character and/or reason of his discharge was denied. 16. On 27 August 2008, the ABCMR determined that the evidence presented did not demonstrate the existence of probable error or injustice and the Board denied his petition for an upgrade of his discharge. 17. On 14 May 2019, the ABCMR reconsidered the applicant’s petition for an upgrade of his discharge and granted him partial relief. His character of service was upgraded from UOTHC to under honorable conditions (general). 18. AR 635-200, chapter 14, provides that action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. The regulation also states: 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. 19. In reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense 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 further clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided insufficient evidence of post-service achievements or letters of reference in support of clemency beyond what he has already received. Based on a preponderance of evidence, the Board determined the upgraded character of service he received as a result of a previous ABCMR decision properly characterizes his service subsequent to his reenlistment. The Board concurred with the corrections described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant partial amendment of the decision of the ABCMR set forth in Docket Number AR20170019417, dated 14 May 2019. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the corrections described in Administrative Note(s) below. 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 upgrading the applicant's character of service to fully 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): 1. Army Regulation 635-8 (Separation Processing and Documents), currently in effect, states that for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous honorable active service from [first day of service for which a DD Form 214 was not issued] until [date before commencement of current enlistment]." The applicant reenlisted on 9 June 1986. Correct item 18 (Remarks) of his DD Form 214 by adding the statement "Continuous honorable active service from 15 June 1983 until 8 June 1986." 2. The applicant served in South Korea for 12 months, which meets the eligibility criteria for the Korea Defense Service Medal. Correct his DD Form 214 by adding the Korea Defense Service Medal. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 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. 2. 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) AR20190013746 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190013746 7 ABCMR Record of Proceedings (cont) AR20190013746 6