IN THE CASE OF: BOARD DATE: 19 April 2022 DOCKET NUMBER: AR20220000471 APPLICANT REQUESTS: upgrade of his character of service from general, under honorable conditions to honorable and a change of the narrative reason for separation to a more favorable reason. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 19 August 2021 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 26 March 1986 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, in effect: a. He enlisted at 22 years of age, he was promoted to sergeant, and he was discharged at 25 years of age. At the time of his discharge he took some cold medicine that showed up on his urinalysis and was told he was being discharged. b. He was not a drug user or addict and when he sees the words 'drug abuse' that’s what comes to mind. He doesn't want his children seeing that and thinking their father was a drug addict while he was in the Army. 3. On 19 October 1982, he enlisted in the Regular Army for 3 years at 22 years of age, he completed basic combat training and advanced individual training, and was awarded military occupational specialty 95B (Military Policeman). 4. On 22 October 1985, he extended his enlistment by 4 months. 5. On 18 September 1985, he was awarded the Army Good Conduct Medal. 6. On 20 November 1985, he accepted nonjudical punishment (NJP) under provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) December 1985 for disobedience of a lawful order for the first sergeant, to be in formation at 1700 hours on 17 November 1985. His punishment consisted of 14 days' extra duty and he did not appeal this punishment. 7. On 27 January 1986, laboratory results determined a sample urinalysis he submitted during a unit sweep on 6 January 1986 showed a positive biochemical test for the presence of Tetrahydrocannabinol (THC) and the results were forwarded to the Commander, XVIII Airborne Corps and Fort Bragg. 8. On 24 February 1986, he accepted NJP under provisions of Article 15 of the UCMJ for wrongfully using marijuana between 28 December 1985 and 6 January 1986. His punishment consisted of reduction to specialist/E-4, controlled substance, forfeiture of $441.00 per month for 2 months, and 30 days' extra duty. He did not appeal this punishment. 9. Orders 36-116, 26 February 1986, issued by Headquarters, 82d Airborne Division show he was promoted to sergeant, with a date of rank of 6 December 1985. 10. On 5 March 1986, he underwent a mental status evaluation (DA Form 3822-R) as requested by his command for the purpose of administrative separation proceedings. The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. 11. On the same date, he underwent a physical examination and gave a medical history in connection with his command's proposed administrative separation proceedings. The examining physician indicated he was qualified for separation. 12. On 7 March 1986, the applicant's commander notified him that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct. The commander stated the reason for the proposed actions were that the applicant had wrongfully used marijuana as determined by biochemical testing results. a. The applicant's commander recommended he receive an under honorable conditions (general) character of service. Additionally, the commander informed of him of his rights, which included but were not limited to the right to consult with consulting counsel (and) (or) civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days) and the right had the right to submit written statements in his own behalf. b. On this same day, the applicant acknowledged receipt of the notification. 13. On 7 March 1986, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct-drug abuse, under AR 635-200, Paragraph 14-12c, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He understood that if he had less than six years of total active and reserve military service at the time of initiation of separation and was being considered for separation for misconduct-drug abuse, under AR 635-200, Paragraph 14-12c, Section III, he was not entitled to have his case heard by an administrative separation board, unless he was being considered for a discharge under other than honorable conditions. a. He elected not to submit statements in his own behalf, and he requested consulting counsel and representation by military counsel. b. He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that as the result of issuance of a discharge under other than honorable conditions 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. 14. On 7 March 1986, the applicant's commander formally recommended his separation under the provisions of AR 635-200, paragraph 14-12c, with a general characterization of service. The commander included the same reason for the recommendation as noted in the initial notification to the applicant. 15. On 13 March 1986, approval authority directed the applicant's discharge from the service under the provisions of AR 635-200, paragraph 14-12c for misconduct, abuse of illegal drugs. He further directed the applicant not be transferred to the Individual Ready Reserve, and he waived the rehabilitative transfer requirement. 16. On 26 March 1986, he was discharged after completing 3 years, 3 months, and 18 days of net active service during the period covered. His DD Form 214 contains the following entries: * Item 24 (Character of Service) – under honorable conditions (general) * Item 25 (Separation Authority) - AR 635-200, paragraph 14-12c, Section III * Item 26 (Separation Code) JKK * Item 28 (Narrative Reason for Separation) – Misconduct-Drug Abuse, 17. The applicant provided, statement on his application that the Board should consider in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. 1. As for the character of service, the Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty by reason of Misconduct – Abuse of Illegal Drugs. His service was characterized as general. He completed 3 years, 3 months, and 18 days of active service. Board members felt given his age, length of service, and time passed, his character of service is too severe for the misconduct he committed. After reviewing the application and all supporting documents, the Board found that relief was warranted based upon guidance for consideration of discharge upgrade requests. 2. As for the reason for separation, Board members noted that the applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14 of Army Regulation 635-200 for misconduct. Absent the misconduct, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate separation code associated with this discharge is "JKK" which is correctly shown on his DD Form 214. 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 reissuing him a DD Form 214 for the period ending 26 March 1986 showing his character of Honorable. 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 changing the narrative reason for separation. 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, 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 set policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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. f. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) 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. (2) Paragraph 14-12c (Commission of a serious offense) - Soldiers are subject for separation under this paragraph for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. (3) Paragraph 14-12d (Abuse of illegal drugs) Members in whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under the provisions of chapter 9 or section II of this chapter will be processed for separation. Abuse of illegal drugs is serious misconduct. Separation action normally will be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. The separation reason in all separations authorized by this paragraph will be "misconduct- abuse of illegal drugs." 3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). The Department of Veterans Affairs Schedule for Rating Disabilities (VASRD). VASRD is used by the Army and the VA as part of the process of adjudicating disability claims. It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. This degree of severity is expressed as a percentage rating which determines the amount of monthly compensation. For an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his/her office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 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. 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) AR20220000471 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1