IN THE CASE OF: BOARD DATE: 1 June 2023 DOCKET NUMBER: AR20220010926 APPLICANT REQUESTS: Reconsideration of his previous request for upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC89-09941 on 20 June 1990. 2. As a new argument, the applicant states, his life has changed. He is 64 years old, retired and disabled. He would like his record cleared. 3. The applicant enlisted in the Regular Army on 30 April 1974 for a 2-year period. He was honorably discharged on 24 June 1974 under the Trainee Discharge Program. His DD Form 214 (Report of Separation from Active Duty) shows he was credited with 1 month and 17 days of net active service. A subsequent DD Form 215 (Correction to DD Form 214) shows his date of birth was corrected. 4. The Board reviewed the applicant's petition to the ABCMR for a void enlistment on 16 July 1986. The Office of The Judge Advocate General advised the Board that the applicant was under the age of 17 at the time of his enlistment, therefore, he was never lawfully enlisted and acquired no military status upon his "enlistment." The Board recommended the applicant's records should be corrected to reflect that he was released from the custody and control of the Army on the date of his discharge because of a void enlistment. 5. The applicant enlisted in the Regular Army on 5 March 1987 for a 4-year period. The highest rank he attained was private/E-2. 6. Air Force (AF) Form 1890 (Urinalysis Custody and Report Card), dated 6 April 1988, shows the applicant provided a urine specimen which tested positive for tetrahydrocannabinol (THC). 7. The applicant was formally counseled on two occasions, 28 April 1988 and 10 May 1988, for five episodes of failure to repair. 8. His service record contains a 9-page self-authored statement, dated 12-May 1988, wherein the applicant requests a transfer due to his inability to progress in his military occupational specialty (MOS), unfair treatment, and poor leadership from his immediate supervisor. 9. A certificate from the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), Fort Sam Houston, TX, dated 25 May 1988, shows the applicant was enrolled in the ADACP on 15 March 1988 for cannabis abuse. He did not demonstrate motivation to change his behavior or participate in his rehabilitation. It was recommended he be considered for discharge due to unsuitability for military service. 10. The applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniformed Code of Military Justice on 11 May 1988, for the wrongful use of marijuana, between on or about 8 February 1988 and on or about 8 March 1988. His punishment consisted of reduction in rank to private/ E-1, forfeiture of 7 days’ pay, 14 days extra duty and 14 days restriction. 11. A Standard Form (SF) 93, dated 7 June 1988, shows the applicant underwent a medical evaluation and reported being in excellent health. 12. On the same date, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in separation proceedings. 13. The applicant's immediate commander notified the applicant, on 22 June 1988, of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14- 12c, by reason of misconduct (Abuse of Illegal Drugs). As the specific reason, the commander cited the applicant's Article 15 for the use of marijuana. The applicant acknowledged receipt of this notification on 24 June 1988. 14. On 24 June 1988, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He elected to submit a statement wherein he requests an honorable discharge. He further states he was harassed by his immediate supervisor and would like to remain in the Army. 15. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of AR 635-200, Chapter 14- 12c, by reason of misconduct - abuse of illegal drugs. The intermediate commander reviewed and concurred with the recommendation, further recommending the issuance of a DD Form 257A (General Discharge Certificate). 16. The separation authority approved the recommended action on 18 July 1988 and directed the issuance of a General Discharge Certificate. 17. The applicant was discharged on 22 July 1988, under the provisions of AR 635- 200, paragraph 14-12a, by reason of misconduct - drug abuse. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under honorable conditions (general) (Separation Code JKK, Reentry Code 3). He was credited with 1 year, 4 months, and 18 days of net active service. 18. The Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his discharge on 3 May 1989 and determined he was properly and equitably discharged. 19. The Board reviewed the applicant's petition to the ABCMR for an upgrade of his discharge on 20 June 1990. After careful consideration, the Board determined his characterization of service was neither in error nor unjust. Accordingly, his request for relief was denied. 20. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, a discharge under other than honorable conditions is normally appropriate; however, the separation authority may direct a general discharge. 21. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s 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 provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 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 to amend the decision of the ABCMR set forth in Docket Number AC89- 09941 on 20 June 1990. 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 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 merited by the Soldier’s overall record. 2. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs 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. 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) AR20220010926 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1