IN THE CASE OF: BOARD DATE: 3 August 2022 DOCKET NUMBER: AR20210013921 APPLICANT REQUESTS: upgrade of his general, under honorable conditions discharge, to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 is requesting this change to his status of separation because his status as a law-abiding citizen has changed. He has never had any problems or run- in with the law or spent any time in jail. He has worked with Chrysler Corporation for over 27 years. He has raised a family of three who have also become productive citizens. His son is in the Army now, and he is in the process now of trying to purchase another home using his VA benefits, but he was told he was unable to because his discharge was general under honorable conditions, and with all the new regulations and legalization of the drug that he was accused of abusing is now legal in most states. So, if the Board could see a way to change the characterization of his discharge and the reason for his discharge it would be greatly appreciated. He has attached copies of his years of service certificate from Chrysler as proof of his years of service and a copy of his deacon certificate. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 8 February 1984 and held military occupational specialty 13B (Cannon Crewmember). He served in Germany from June 1984 to November 1985. b. He reenlisted in the Regular Army on 3 October 1986. He again served in Germany from August 1987 to August 1988. c. He was frequently counseled by various members of his chain of command for a variety of infractions, including: * being absent from his appointed place of duty * missing formation * being absent without authority * wrongfully using marijuana d. On 4 January 1988, he accepted nonjudicial punishment under Article 15 for being absent without leave from 30 to 31 December 1987. His punishment consisted of an oral reprimand, restriction, and extra duty. e. On 11 March 1988, he accepted nonjudicial punishment under Article 15 for wrongfully using marijuana between 12 October 1987 and 17 November 1987. His punishment consisted of reduction to private first class/E-3, forfeiture of pay, and extra duty and restriction. f. On 17 March 1988, his commander initiated a Bar to Reenlistment against him citing the previous Nonjudicial punishment (wrongfully using marijuana and being absent) and his substandard performance. He was provided with a copy of this bar but declined making a statement on his own behalf. The approving authority approved the bar on 23 March 1988. g. On 12 April 1988, he accepted nonjudicial punishment under Article 15 for again wrongfully using marijuana between 20 January 1988 and 26 February 1988. His punishment consisted of reduction to private/E-2, forfeiture of pay, and extra duty. h. On 7 July 1988, he underwent a psychiatric evaluation. The psychiatrist stated: (1) After leaving Germany, he returned for an assignment in the United States. During that time, he received a bar to reenlistment for "failure to pay debts". Presently, he has been in the Germany for approximately nine months. He readily admitted to the use of marihuana since his re­assignment in Germany. He stated that he had difficulty adjusting to the separation from his wife and turned to marijuana and hash to help him "cope." He denied abuse of other drugs and abuse of alcohol. His diagnoses is: Substance Abuse (specifically hash and marijuana). (2) He is psychiatrically cleared for any administrative action deemed appropriate by command. He was and is mentally responsible, able to distinguish right from wrong, and to adhere to the right, and has the mental capacity to understand and participate in board proceedings. Based solely upon this evaluation, it is difficult to make a definite statement regarding the rehabilitative potential of this individual. Such a determination must be made by command on the basis of this individual's ability to adjust to, and his efficiency in his unit. Furthermore, his participation and completion of the drug and alcohol program is imperative. i. On 19 July 1999, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct - commission of a serious offense. The specific reasons: Two Article 15s for the use of marijuana (positive urinalysis). The first time on or about 12 October 1987 ·- 17 November 1987 and the second time on or about 20 January 1988 - 26 February 1988. He advised him of his rights. j. The applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. Since he had less than 6 years of service, he did not qualify for consideration of his case by an administrative separation board or personal appearance before such board. He further indicated that he understood: * He could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge * He could submit a person statement but elected not to do so k. Subsequent to his acknowledgement, the applicant's immediate commander formally initiated separation action against him in accordance with AR 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. He recommended an under honorable conditions discharge. l. The intermediate commander recommended approval. He opine that the applicant has clearly shown a pattern of misconduct through continued drug use. His immediate discharge would serve the best in­terest of the Army. m. On 29 July 1988, the separation authority approved the applicant's discharge under the provisions of AR 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under honorable conditions. On 23 August 1988, the applicant was discharged accordingly. n. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under AR 35-200, chapter 14-12c, by reason of misconduct - commission of a serious offense with a character of service of under honorable conditions. This form further confirms he completed 4 years, 6 months, and 16 days of active service. His DD Form 214 shows he was awarded or authorized the: (1) Block 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized: Army Service Ribbon, Army Achievement Medal, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle (M-16), and Sharpshooter Marksmanship Qualification Badge with Grenade Bar. (2) Block 18 (Remarks) mentioned his immediate reenlistment this period 840208 to 861002 but did not mention his continuous honorable service. 4. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 5. By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12c of AR 635-200 for a commission of a serious offense. A discharge under other than honorable conditions is 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. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records the Board determined there was insufficient evidence of in-service mitigation to overcome the misconduct. The Board applauds the applicant for his post service accomplishments. However, the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 2. During deliberation the Board determined the applicant’s DD Form 214 did not reflect his continuous honorable service for the period of 8 February 1984 until 2 October 1986. Therefore, the Board granted partial relief to correct the applicant’s record reflecting his continuous honorable service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following statement in item 18 (REMARKS): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19840208 UNTIL 19861002.” 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 upgrade of his general, under honorable conditions discharge, 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): REFERENCES: 1. Title 10, United States Code, 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. Army Regulation 635-200 (Personnel Separations), 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. 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. 4. Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to 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 DD Form 214 was not issued) Until (date before commencement of current enlistment). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013921 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1