IN THE CASE OF: BOARD DATE: 31 October 2022 DOCKET NUMBER: AR20220003037 APPLICANT REQUESTS: His narrative reason for separation be changed to a different, presumably more favorable reason and personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Certificate of Nomination - American Legion * Associate in Applied Science Diploma * Bachelor of Science Diploma FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 this offense has put a bad stain on him and has haunted him over the years. While serving in the Army, he had never had any problems serving until he came up positive on a urine test. While serving in the Army, he only experienced one positive urinalysis. In his seven years in the Army, he was never in trouble and never received an Article 15. He elevated himself up through the ranks and was pending promotion to E-6. He was given a retention board to see if he could be retained; however, he was denied because he was an E-5. Over the years, this narrative has put a statin on his employment, but he has somehow become successful. 3. The applicant enlisted in the Regular Army on 6 January 1981, for 3 years. He reenlisted in the Regular Army on 5 October 1984. He was promoted to the rank/grade of sergeant/E-5 on 7 January 1986. 4. On 25 February 1987, the applicant accepted non-judicial punishment under Article 15, of the Uniform Code of Military Justice for wrongful use of marijuana between 19 November 1986 and 19 December 1986. His punishment included reduction to the grade of E-4. 5. On 30 March 1987, the applicant's commander formally initiated his elimination from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct. The commander cited the applicant’s wrongful use of illegal drugs and having a delinquent credit account as reasons for the recommended action. 6. The applicant consulted with counsel on 1 April 1987 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He requested consideration of his case by a board of officers. He declined to submit statements in his own behalf. 7. On 1 April 1987, the applicant's intermediate commander concurred with the recommendation for separation from service and the issuance of an under other than honorable conditions (UOTHC) discharge. Further, he requested that a board of officers be convened for the purpose of determining whether the applicant should be discharged before the expiration of his term of service. 8. On 17 June 1987, a convening board of officers, recommended that the applicant be discharged from military service because of commission of a serious offense, to wit, wrongful use of marijuana, with issuance of a general discharge certificate. 9. The separation authority approved the findings and recommendations of the board of officers on 9 July 1987 and directed the applicant be discharged with the issuance of a general discharge certificate. 10. The applicant was discharged on 27 July 1987. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, with separation code "JKK" by reason of misconduct – abuse of illegal drugs. His service was characterized as under honorable conditions (general). He completed 6 years, 6 months, and 22 days of net active service this period. 11. The applicant petitioned the Army Discharge Review Board for upgrade of his discharge. On 16 September 1988, after careful consideration, the Board determined that he was properly and equitably discharged. 12. On 27 October 2015, the applicant petitioned the ABCMR for an administrative correction to his DD Form 214, to show he was a high school graduate. After careful consideration, the Board granted full relief and action was taken to correct his record. 13. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 14. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition BOARD DISCUSSION: 1. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the frequency and nature of the misconduct and the reason for separation. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, 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 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, USC, Section 1552(b), provides that applications for correction of military records 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 timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) 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. At the time, this regulation prescribed the separation code "JKK" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, based on misconduct – drug use. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to 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. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. 5. 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, 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) AR20220003037 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1