ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 12 April 2021 DOCKET NUMBER: AR20210005088 
APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. 
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 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he was a noncommissioned officer (NCO) who made one mistake, and it cost him his career; it has now been more than 28 years since his discharge, and he respectfully asks the Board to change his character of service. 

3. 
The applicant's service records show: 


a. 
On 20 March 1985, the applicant enlisted into the Regular Army for 3 years. Following initial training, and the award of military occupational specialty (MOS) 19D (Cavalry Scout), orders assigned him to Germany, and he arrived at his unit on 27 July1985. While assigned in Germany, his leadership awarded him a Certificate of Achievement for his dedication and professionalism during a major exercise. On 14 November 1986, Permanent Orders (PO) awarded the applicant the Army Achievement Medal for meritorious service during the period 30 July 1985 through 26 January 1987. 

b. 
On 16 January 1987, the applicant completed his Germany assignment, and orders transferred him to Fort Carson, CO; he arrived at Fort Carson on 5 March 1987. On 18 December 1987, the applicant immediately reenlisted for 3 years, and, as part of 


his reenlistment, he elected to attend training in MOS 76C (Equipment Records and Parts Specialist). On 18 April 1988, PO awarded the applicant the Army Good Conduct Medal (1st Award). 
c. 
On or about 9 September 1988, the applicant departed Fort Carson, and arrived at Fort Lee for MOS training, on 6 October 1988. After 10 weeks of training, the applicant was awarded MOS 76C, and orders reassigned him to Korea; he arrived in Korea on or about 7 January 1989. 

d. 
On 1 May 1989, PO awarded the applicant the Army Achievement Medal (2nd Award) for meritorious service. Effective 1 August 1989, the applicant's leadership in Korea promoted him to sergeant (SGT)/E-5. On 31 October 1989, PO awarded the applicant the Army Commendation Medal (1st Award). On 5 January 1990, the applicant completed his tour in Korea, and orders reassigned him to Fort Carson; he arrived at Fort Carson on or about 15 February 1990. 

e. 
On 1 June 1990, the applicant immediately reenlisted for 2 years. On 7 February 1991, PO awarded the applicant the Army Good Conduct Medal (2nd Award). On 22 August 1991, the applicant immediately reenlisted for 3 years. 

f. 
On 10 December 1991, the applicant participated in a urinalysis test; on or about 10 April 1992, the results came back showing positive for cocaine. On 10 April 1991, the applicant's company commander counseled the applicant, using a DA Form 4856 (General Counseling Form); the commander advised the applicant that, according to Army Regulation (AR) 600-85 (Alcohol and Drug Abuse Prevention and Control Program), enlisted Soldiers in the grades of E-5 through E-9 had to be processed for separation when they had been identified as using illegal drugs. 

g. 
On 6 May 1992, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for using cocaine at some point between 7 and 10 December 1991; punishment included reduction from SGT to specialist (SPC)/E-4. 

h. 
On or about 10 June 1992, the applicant's commander advised him of his intent to separate the applicant under chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander cited the applicant's positive urinalysis test for cocaine as the reason for separation, and stated, while the separation authority was not bound to follow his recommendation, the commander intended to recommend the applicant for an under honorable conditions (general) discharge. The commander further informed the applicant of his right to consult with consulting military counsel within not less than 3 days and stated the applicant could submit statements in his own behalf. 

i. 
On 10 June 1992, after consulting with counsel (a sergeant first class), the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. The applicant waived his right to personally appear before an administrative separation board, waived his right to consulting counsel, and elected not to submit statements in his own behalf. 

j. 
On 10 July 1992, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 23 July 1992, he was discharged accordingly. His DD Form 214 shows he completed 7 years, 4 months, and 4 days of net active duty service, with 11 months and 2 days served on his last 3-year reenlistment contract. The separation authority was AR 635-200, paragraph 14-12c; the separation code was "JKK"; and the narrative reason for separation was "Misconduct – Abuse of Illegal Drugs." The applicant was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Overseas Service Ribbon (2nd Award), Army Good Conduct Medal (2nd Award), Achievement Medal (2nd Award), NCO Professional Development Ribbon, Parachutist Badge, and two marksmanship qualification badges. Item 18 (Remarks) listed his continuous honorable service from 19850320 through 19910821. 


4. The applicant regrets the misconduct that cost him his military career, and he respectfully requests the Board to upgrade his character of service. 
a. During the applicant's era of service, commanders could separate Soldiers, per paragraph 14-12c, AR 635-200, when those Soldiers had committed a serious military or civilian offense, and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge for the offense. The regulation considered the abuse of illegal drugs as serious misconduct, and, for first-time offenders, commanders had the discretion to initiate separation action, when deemed appropriate; however, commanders were required to process separation proceedings against first-time offenders in grades E-5 through E-9, as well as any Soldiers who had committed a second offense, regardless of rank. 
(1) 
Commanders were to use the notification procedure, outlined in AR 635-200, when initiating separation action under chapter 14. The procedure required the commander to notify the Soldier, in writing, that separation processing had been recommended, and the commander was to cite the specific allegations upon which the action was based. In addition, the commander was to inform the Soldier of the least favorable character of service he/she could receive, the type of discharge, and the following rights: 

. 
consult with consulting counsel within a reasonable time (not less than 3 days) 

. 
submit statements in his/her own behalf 

. obtain copies of documents to be sent to the separation authority 

. 
waive the foregoing rights 



(2) 
An additional right was extended to Soldiers who had accumulated 6 or more years of active duty and reserve service; these Soldiers could request a hearing and a personal appearance with counsel before an administrative separation board. At the time his separation proceedings were initiated, the applicant had served 7 years, 4 months, and 11 days. On the document showing his elections, the applicant neither requested nor waived consideration of his case by an administrative separation board, but he did waive his right to a personal appearance. 

(3) 
The regulation defined a counsel appointed for consultation as a commissioned officer of the Judge Advocate General's (JAG) Corps who had been specifically appointed to consult with and advise Soldiers at the outset of any initiated separation proceeding. Non-lawyer counsels could be appointed when the Soldier was deployed on a vessel or his/her place of assignment was more than 250 miles away from sufficient JAG resources. When a non-lawyer counsel was appointed, appropriate authority was required to certify, on the permanent record, that a lawyer with the necessary qualifications was not available; additionally, the record had to state the qualifications of the substituted non-lawyer counsel. The evidence of record shows the applicant's consulting counsel was a sergeant first class, and the form he completed indicates he waived counsel after consulting with the sergeant first class; additionally, the record is void of any documentation confirming a qualified JAG officer was not reasonably available and that the sergeant first class held the requisite qualifications to serve as a consulting counsel. 

b. 
The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included a punitive discharge among its maximum punishments. 

c. 
In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 


BOARD DISCUSSION: 
After reviewing the application, all supporting documents and the evidence found within the military record, the Board found that relief was not warranted. The Board considered the applicant's statement, service record, the nature of the misconduct and the reason for his separation. The Board considered the published DoD guidance for consideration of discharge upgrade requests. The Board found insufficient evidence of mitigating factors during the applicant's service. The applicant did not provided evidence of post-service achievements or letters of reference to be considered in support of a clemency determination. Based on a preponderance of evidence to include the documentation available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurred with the corrections in the Administrative Notes below. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
:XXX :XXX :XXX DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
Except for the correction addressed in Administrative Note(s) below, the Board found 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. 
X 
CHAIRPERSON 
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. 
AR 635-5 (Separation Documents), in effect at the time, stated the DD Form 214 was to list all awards and decorations. 

2. 
AR 600-8-22 (Military Awards), currently in effect, states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The area of eligibility encompasses all of land area of the Republic of Korea, and the period of eligibility is from 28 July 1954 to a date yet to be determined by the Secretary of Defense. 

3. 
The evidence of record shows the applicant completed a tour in Korea, but his service record does not show the award of the Korea Defense Service Medal; as a result, amend the applicant's DD Form 214, ending 23 July 1992, by adding the Korea Defense Service Medal. 


REFERENCES: 
1. 
Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 


a. 
Paragraph 3-7a (Honorable Discharge) stated an honorable character of service represented a separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. 

b. 
Paragraph 14-12c applied to Soldiers who had committed a serious military or civilian offense where the specific circumstances warranted separation and the UCMJ authorized a punitive (i.e. bad conduct or dishonorable) discharge. Abuse of illegal 


drugs was considered serious misconduct. A single drug abuse offense could be combined with one or more minor disciplinary infractions of incidents of other misconduct. First-time offenders, grades El-E4, could be processed for separation as appropriate; however, first-time drug offenders in grades E5 through E-9 or second-time offenders were required to have separation action initiated upon the discovery of a drug offense. 
(1)
 Commanders were to use the notification procedure, outlined in AR 635-200, when initiating separation action. The procedure required the commander to notify the Soldier, in writing, that separation processing had been recommended, and the commander was to cite the specific allegations upon which the action was based. In addition, the commander was to inform the Soldier of the least favorable character of service he/she could receive, the type of discharge, and the following rights: 

. 
consult with consulting counsel within a reasonable time (not less than 3 days) 

. 
submit statements in his/her own behalf . obtain copies of documents to be sent to the separation authority 

. 
waive the foregoing rights 



(2)
 An additional right was extended to Soldiers who had accumulated 6 or more years of active duty and reserve service; these Soldiers could request a hearing and a personal appearance with counsel before an administrative separation board. 

(3)
 The regulation defined a counsel appointed for consultation as a commissioned officer of the Judge Advocate General's (JAG) Corps who had been specifically appointed to consult with and advised Soldiers at the outset of any initiated separation proceeding. Non-lawyer counsels could be appointed when the Soldier was deployed on a vessel or his/her place of assignment was more than 250 miles away from sufficient JAG resources. When a non-lawyer counsel was appointed, appropriate authority was required to certify, on the permanent record, that a lawyer with the necessary qualifications was not available; additionally, the record had to state the qualifications of the substituted non-lawyer counsel. 


3. 
The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included a punitive discharge among its maximum punishments. 

4. 
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. 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. 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. 
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