IN THE CASE OF: BOARD DATE: 21 April 2020 DOCKET NUMBER: AR20190014776 APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) characterization of service to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he put in the time and did his job well. At the time, he was going through family problems and his father had passed away. He missed being at home and he made mistakes. He paid for those mistakes. He is an old veteran now and he could use some of the health benefits. 3. The applicant enlisted in the Regular Army on 18 August 1983. 4. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, for the following offenses: * on 9 November 1984, for the wrongful use of some amount of marijuana, between 25 July 1984 and 7 August 1984, at or near Fort Shafter, HI * on 11 April 1985, for the wrongful use of some amount of cocaine, on or about 17 December 1984, at Fort Shafter, HI * on 20 May 1985, for the wrongful use of some amount of marijuana, on or about 10 April 1985, at Fort Shafter, HI 5. The applicant was notified by his immediate commander that he was being recommended for separation from service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct. 6. The applicant consulted with counsel on 11 April 1985 and acknowledged that he was advised of the contemplated action and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He elected not to submit a statement in his own behalf. He further acknowledged that if he was separated from the service for reasons of an act of misconduct or civil conviction, and as a result, received an other than honorable discharge certificate, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 7. The applicant’s immediate commander recommended the applicant’s separation from service on 10 May 1985, under the provisions of AR 635-200, Chapter 14, by reason of misconduct – abuse of illegal drugs, two offenses. The specific reason stated was the applicant’s unsatisfactory performance in handling the basic responsibilities of a Soldier as evidenced by his use of illegal drugs. 8. The separation authority approved the recommended discharge on 11 June 1985 and directed the issuance of a General Discharge Certificate. 9. The applicant was discharged on 25 June 1985. His DD Form 214 confirms he was discharged under the provisions of AR 635-200, paragraph 14-12d, by reason of misconduct – abuse of illegal drugs. His service was characterized as under honorable conditions. 10. The Board should consider the applicant's overall record and the statement he provides in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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 mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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 :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 635-200 (Personnel Separations – Enlisted Personnel) set 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. 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. 3. 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) AR20190014776 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190014776 4 ABCMR Record of Proceedings (cont) AR20190014776 3