IN THE CASE OF:    
BOARD DATE:  13 April 2022 
DOCKET NUMBER:  AR20210015058 


APPLICANT REQUESTS:  In effect an upgrade of his characterization of service from general, under honorable conditions to fully honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States) in-lieu of a DD Form 149 (Application for Correction of MilitaryRecord)

•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, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records (ABCMR) conducted a substantive review of this case and determinedit is in the interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he is requesting this correction so that he may qualify for aCertificate of Eligibility for a Department of Veterans Affairs (VA) loan.

3.The applicant completed honorable Regular Army (RA) service from 11 May 1984 to10 March 1987.  He was assigned to Fort Stewart, GA, on 11 September 1984, withduties in military occupational specialty (MOS) 55B (Ammunition Specialist).

4.On 11 May 1987, the applicant was issued a Letter of Reprimand and advised thathis urine sample provided on 20 March 1987 tested positive for marijuana.  Drug abusewas incompatible with military service.  Accordingly, his retention on active duty wassubject to further evaluation.  That evaluation would include the circumstancessurrounding the abuse, his past conduct, corrective action, and potential for furtherservice.  He was also advised the reprimand was imposed as an administrativemeasure under the provisions of Army Regulation (AR) 600-37, and not as punishmentunder Article 15, Uniform Code of Military Justice (UCMJ).

a.The applicant acknowledged, “I have read and understand the unfavorableinformation presented against me and submit the following statement or documents in my behalf.”  However, an undated, Disposition Form filed in his record by his commander shows he was given 7 days to present a statement in his behalf and he failed to make a statement. 

b.The appropriate authority reviewed the basic correspondence, and precedingendorsements, and directed that the Letter of Reprimand be filed in the performance portion of the applicant’s Official Military Personnel File. 

5.On 8 June 1987, the applicant was issued a second Letter of Reprimand andadvised that his urine sample provided on 4 May 1987 tested positive for marijuana.Drug abuse was incompatible with military service.  Accordingly, his retention on activeduty was subject to further evaluation.  That evaluation would include the circumstancessurrounding the abuse, his past conduct, corrective action, and his potential for furtherservice.  He was also advised the Reprimand was imposed as an administrativemeasure under the provisions of AR 600-37, and not as punishment under Article 15,UCMJ.  The acknowledgement and filing instructions are not available for review withthis case.

6.On 19 June 1987, he accepted nonjudicial punishment (NJP) for between 4 April and4 May 1987, wrongfully using marijuana, a schedule I controlled substance, which wasdetected by biochemical testing of a urine sample he provided to military authorities atFort Stewart.  His punishment consisted of reduction from pay grade E-4 to E-3 and aforfeiture of $400 pay for 2 months.

7.On 24 June 1987, a Bar to Reenlistment Certificate was approved against theapplicant.

8.On 25 June 1987, he underwent a mental status evaluation.  This evaluationdetermined he had the capacity to understand and participate in the proceedingsdeemed appropriate by his chain of command, he was mentally responsible, and metretention requirements of chapter 3, AR 40-501.  Additionally, this evaluationdetermined, he was cleared for administrative action deemed appropriate by his chainof command.

9.On 13 July 1987, the applicant's commander notified him of his intent to separatehim under, AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c(Commission of a Serious Offense) with an under other than honorable conditionsdischarge.  The reason for this proposed action was testing positive for marijuana use.On the same date, he acknowledged notification.

10.On 14 July 1987, after consulting with counsel, the applicant acknowledged counselhad advised him of the basis for the separation action, the rights available to him, andthe effect of waiving those rights.  He elected not to submit a statement in his ownbehalf.  He requested consideration of his case by a board of officers, a personalappearance before an administrative separation board, and he declined to submit aconditional waiver of his right to have his case considered by an administrativeseparation board.

11.On 22 July 1987, the unit commander recommended the applicant’s separationfrom the Army under paragraph 14-12c, AR 635-200, due to commission of a seriousoffense, with a general discharge.  On the same date, his intermediate commanderreviewed the proposed action and recommended approval.

12.On 22 July 1987, the separation authority approved the commander'srecommendation with the issuance of a General Discharge Certificate.

13.On 24 July 1987, he accepted NJP for on or about 20 July 1987, leaving hisappointed place of duty (extra duty) without authority.  His punishment consisted ofreduction from pay grade E-3 to E2 and a forfeiture of $170 pay.

14.On 5 August 1987, he was discharged in pay grade E-2.  His DD Form 214 showshe completed 3 years, 2 months, and 25 days of net active service this period.  HisDD Form 214 also reflects in:

•Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded orAuthorized – Army Service Ribbon, Army Commendation Medal, ArmyAchievement Medal (1st Oak Leaf Cluster), and Marksman MarksmanshipQualification Badge (Rifle)

•Remarks – Immediate Reenlistment this Period: “840511-870310”

•Character of Service – Under Honorable Conditions, General

•Separation Authority –Paragraph 14-12c, AR 635-200

•Narrative Reason for Separation – “Misconduct-Abuse of Illegal Drugs”



15.AR 635-200 in effect at the time, provided that commanders were to initiateseparation action under chapter 14 when Soldiers had committed serious offenses forwhich the UCMJ authorized a punitive discharge as a maximum punishment, abuse ofillegal drugs was deemed a serious offense, and the UCMJ showed a punitivedischarge could be adjudged for abuse of illegal drugs.

16.The applicant argues that he is requesting an upgrade of his discharge so that hemay qualify for a Certificate of Eligibility for a VA loan.


17.The ABCMR does not grant requests for the correction of records solely for makingthe applicant eligible for veterans or other benefits.  The Board decides every caseindividually based upon its merits when an applicant requests a correction to the militaryrecord.

18.He completed honorable RA service from 11 May 1984 to 10 March 1987.
He reenlisted on 11 March 1987 and served until he was discharged under honorableconditions for illegal drug abuse on 5 August 1987.  His honorable period of service isfurther addressed in the Administrative Notes portion of this Record of Proceedings.

19.In reaching its determination, the Board can consider the applicant's petition,contentions, and service record in light of the published guidance on equity, injustice, orclemency.

19.By regulation AR 635-5 (Personnel Separations – Separation Documents) forSoldiers who have previously reenlisted without being issued a DD Form 214 and whoare later separated with any characterization of service except “honorable,” enter, inRemarks, “CONTINUOUS HONORABLE ACTIVE SERVICE FROM” (first day of servicewhich DD Form 214 was not issued) UNTIL (date before commencement of currentenlistment).


BOARD DISCUSSION: 

1.After reviewing the application and all supporting documents, the Board found thatpartial relief was warranted. The Board carefully considered the applicant's record ofservice, documents submitted in support of the petition and executed a comprehensiveand standard review based on law, policy and regulation, and published Department ofDefense guidance for liberal and clemency consideration for requesting upgrade ofdischarge characterization of service. Upon review of the applicants petition andavailable military records the Board found insufficient evidence of in-service mitigationto overcome the misconduct.  He was discharged for illegal drug abuse and wasprovided an under honorable conditions (General) characterization of service.  TheBoard agreed that the applicant's discharge characterization is warranted as he did notmeet the standards of acceptable conduct and performance of duty for Army personnelto receive an Honorable discharge.

2.However, the Board determined the applicant completed his first enlistmenthonorably and his records were absent the award of the Army Good Conduct Medal (1stAward). Based on this, the Board determined partial relief was warranted and grantedrelief for award of the Army Good Conduct Medal.

3.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction is completed to more accurately depictthe military service of the applicant.


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 arecommendation for partial relief.  As a result, the Board recommends that allDepartment of Army records of the individual concerned be corrected by awarding himthe Army Good Conduct Medal (1st Award) for exemplary service from 11 May 1984 to10 March 1987 and adding the medal to his DD Form 214 for the period ending 10March 1987.2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to an upgrade of his characterization of service fromgeneral, under honorable conditions to fully honorable.



Microsoft Office Signature Line...

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): 

A review of the applicant’s records shows he is administrative corrections were not annotated on his DD Form 214 for the period ending 5 August 1987. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by adding in: 

•item 18 (Remarks) of his DD Form 214 by adding the following entry“CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19840511 -19870310.”

•Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons,Awarded or Authorized) – National Defense Medal




REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.   

c.Chapter 14 establishes policy and prescribes procedures for separating membersfor misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An under other than honorable conditions discharge 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.  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.   
d.Paragraph 1-18 waives the rehabilitation transfer because it would not be in thebest interest of the Army as it would not product a quality Soldier. 

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  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 maybe warranted based on equity or relief from injustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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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