IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20220011305 APPLICANT REQUESTS: upgrade of his January 1995 general, under honorable conditions discharge from the U.S. Army Reserve (USAR). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214, Certificate of Release or Discharge from Active Duty, 29 September 1984 * NGB Form 22 (Report of Separation and Record of Service), 31 October 1987 * USAR Discharge order 014-09, 27 January 1995 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 several years have passed and he is no longer the man he was. He is 58 years old and would like to be buried with honor and respect. He thinks about the hard work he put in to become a Soldier with 10 years of dedication, yet he has nothing to show for it. 3. The applicant enlisted in the New Jersey Army National Guard (NJARNG) for 6 years on 23 January 1984. 4. He entered active duty for training on 14 May 1984 and completed training for award of military occupational specialty 31K, Combat Signaler. He was honorably released from active duty on 29 September 1984 to the control of his State ARNG. His DD Form 214 shows he completed 4 months and 16 days of active service. 5. The complete facts and circumstances surrounding his discharge from the ARNG are not available for review. However, his NGB Form 22 shows he was discharged on 31 October 1987 in accordance with paragraph 8-27 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) due to unsatisfactory participation. His NGB Form 22 (Report of Separation and Record of Service) also shows: * He completed 3 years, 9 months, and 8 days of ARNG service * He was transferred to the USAR Control Group (Reinforcement) to complete his remaining service obligations 6. He enlisted in the U.S. Army Reserve on 30 August 1989 for 3 years and followed that with a 6-year reenlistment on 3 June 1992. He was assigned to the 357th Chemical Company, Camden, NJ. 7. On 21 June 1994, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 7 of Army Regulation (AR) 135-178 (Enlisted Administrative Separations). The specific reason for the proposed action is that the applicant tested positive for cocaine on 20 March 1994. The commander advised the applicant of his rights. 8. On 21 June 1994, the applicant consulted with counsel. He indicated he had been advised by consulting counsel of the basis for the contemplated action to accomplish separation for misconduct, chapter 7, paragraph 7-11, abuse of illegal drugs, under AR 135-178, 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 he is entitled to have his case considered by an administrative separation board because he is being considered for discharge under other than honorable conditions. He requested consideration of his case by an administrative separation board and appearance before such board. He also declined submission of a statement on his own behalf. He acknowledged: * He understood that he may expect to encounter substantial prejudice in civilian life if his service is characterized as under honorable conditions or under other than honorable conditions * He further understood that as a result of a characterization of service of under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 9. On 16 August 1994, the applicant’s commander initiated separation action against the applicant for a positive drug urinalysis. However, he recommended the applicant’s retention. The commander stated that during annual training, the applicant ensured that company communication always remained operational. He displayed a strong personal commitment to every task that was given him. After talking with the applicant., he believes he had some family problems that may have caused the positive drug test. He believes this was a one-time occasion. The chain of command recommended approval with issuance of a general, under honorable conditions discharge. 10. On 21 December 1994, the applicant re-consulted with counsel who advised him of the basis for the contemplated action to accomplish separation for Misconduct, for abuse of illegal drugs, under AR 135-178, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He submitted a conditional waiver. He waived consideration of his case by an administrative separation board contingent on him receiving a characterization of service no less favorable than general, under honorable conditions. 11. On 28 December 1994, the separation authority (Commanding General, 79th United States Anny Reserve Command), approved the applicant’s conditional waiver. He directed that the applicant be discharged for Misconduct - Abuse of Illegal Drugs, with a characterization of service of under honorable conditions (general). 12. On 27 January 1995, Headquarters, 79th U.S. Army Reserve Command published Orders 014-09 discharging him from the USAR effective 27 January 1995 in accordance with Army Regulation (AR) 135-178 (Enlisted Administrative Separations) with an under honorable conditions (general) characterization of service. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and 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 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 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. National Guard Regulation 600-200 (NGR) and Army Regulation (AR) 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) govern procedures covering enlisted personnel management of the ARNG Chapter 8 of NGR 600-200, in effect at the time, covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State ARNG. Paragraph 8-27(g) of that regulation provides in pertinent part that individuals can be separated for being an unsatisfactory participant. AR 135-91 states that a member is an unsatisfactory participant when nine or more unexcused absences from scheduled drills occur during a 1-year period. 3. Army Regulation (AR) 135-178 governs procedures covering enlisted personnel management of the Army Reserve. Chapter 7 of the regulation in effect at the time governed separation for misconduct. a. Specific categories include minor disciplinary infractions, patterns of misconduct, commission of a serious offense, and related charges. Paragraph 7-11c(1) states, in pertinent part, that abuse of illegal drugs is a serious offense, and that discharge action will normally be based on commission of the offense. It also states that a single drug abuse offense may be combined with one or more disciplinary infractions, or incidents of other misconduct, for discharge. Individuals in pay grade E-5 and above, and all soldiers with 3 or more years of total military service (Regular and Reserve) will be processed for separation upon discovery of a drug offense. b. 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. An honorable characterization of service is not authorized for a member who has not completed entry level status unless the member's record is otherwise so meritorious that any other characterization would clearly be inappropriate. 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. 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 because 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011305 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1