IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20220008311 APPLICANT REQUESTS: His DD From 214 (Certificate of Release or Discharge from Active Duty) be amended at: * Block 24 (Character of Service), to show an "Honorable" discharge * Block 25 (Separation Authority), to a more favorable reason * Block 26 (Separation Code), to a more favorable code * Block 28 (Narrative Reason for Separation), to show "Misconduct" or left blank APPLICANT'S SUPPORTING DOCUMENT(S) 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, U.S. 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 it has been 33 years since his discharge and granting his request would greatly enhance his future employment opportunities. According to the U.S. Trial Defense Service Region V, all records of his separation action, including the reason for separation, are confidential by operation of Federal Law. The only thing, which will be known by prospective employers, is the type of discharge which you received (i.e., Honorable, etc.). He is not a lawyer and does not know if this is accurate. However, in a recent employment application, a DD Form 214 was a document to be submitted for ex-military personnel and his document might suggest illegal use of drugs to a potential employer. 3. The applicant enlisted in the Regular Army on 31 December 1982 for 3 years. He completed training with award of military occupational specialty 31C (Single Channel Radio Operator). The highest grade he held was E-4. 4. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 20 November 1989, for failure to go to his appointed place of duty at the time prescribed on 31 October 1989 * 20 June 1990, for disobeying a lawful order from a noncommissioned officer on 20 May 1990 and disobeying a lawful order from the command sergeant major * 6 July 1990, for wrongful use of marijuana between on or about 21 April 1990 and 20 May 1990; his punishment included reduction to E-2 5. On 5 June 1990, the applicant's commander was notified of the applicant's positive drug test results. 6. The applicant's immediate commander notified the applicant on 20 July 1990 of his intent to initiate actions to separate him under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 14, for commission of a serious offence. His commander noted the specific reasons as the applicant's positive drug test and his NJP. 7. A DA Form 3822-R (Report of Mental Status Evaluation), dated 26 July 1990, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 8. The applicant consulted with legal counsel on 26 July 1990. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. He waived all of his administrative rights. 9. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge. 10. The appropriate authority approved the discharge recommendation on 27 July 1990 and directed the applicant be issued a General Discharge Certificate. 11. The applicant was discharged on 9 August 1990, in the pay grade of E-2. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, paragraph 14-12c, for misconduct - abuse of illegal drugs, with separation code "JKK." His service was characterized as under honorable conditions (general). He was credited with 2 years, 7 months, and 9 days of net active service. 12. In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. 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 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 found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or letters of support that could attest to his honorable conduct that might have mitigated the discharge characterization. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 2 years, 7 months, and 9 days of net service. 2. The Board determined, 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. In addition, the Board agreed at the time of separation, the documentation supports the narrative reason for separation as identified on the applicant’s DD Form 214. Furthermore, the Board determined there was insufficient evidence of an error or injustice that would warrant a change in the separation code or separation authority. Therefore, the Board denied relief. 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, U.S. 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes 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. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was or could be authorized for that same or relatively similar offense under the UCMJ. The separation reason in all separations authorized by paragraph 14-12c for will be "misconduct-abuse of illegal drugs." 3. Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It provides that the separation code "JKK" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for drug abuse. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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 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.) AR20220008311 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1