IN THE CASE OF: BOARD DATE: 18 August 2023 DOCKET NUMBER: AR20230000509 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge and a different, presumably more favorable, narrative reason for separation. 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) 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, in effect, it was his understanding of the Army discharge procedure that if he did not get in trouble within six months after separation, his character of service would change to honorable and the narrative reason for separation would be removed. 3. The applicant enlisted in the Regular Army, on 28 February 1979. He reenlisted on 28 August 1981, and again on 29 May 1985. The highest grade he attained was E-5. 4. The applicant received formal counseling on 9 July 1986, for a positive urinalysis test for marijuana. 5. The applicant's commander notified the applicant on 17 July 1986, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 14, for misconduct. As the specific reasons, his commander cited his positive urinalysis. 6. The applicant consulted with legal counsel and acknowledged he had been advised of the basis for the contemplated separation action. Following his consultation, he requested the right to personally appear before, and to have his case considered by a board of officers. He declined to submit a statement in his own behalf. He requested representation by counsel. He acknowledged he understood that as a result of issuance of a discharge under honorable conditions (general), he may be ineligible for many or all benefits as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life. 7. The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, for positive urinalysis. He further recommended a service characterization of under honorable conditions (general). 8. On 20 March 1987, a board of officers held a hearing to determine if the applicant should be eliminated from service. The Board recommended that he be discharged because of abuse of illegal drugs, with an under honorable conditions (general) discharge. 9. Consistent with the board s findings and recommendation, the separation authority approved the recommended discharge on 14 April 1987, with the issuance of a DD Form 257A (General Discharge Certificate). 10. On 21 April 1987, the applicant underwent a mental status evaluation. He was psychiatrically cleared to understand and participate in board proceedings deemed appropriate by the command. 11. The applicant was discharged on 23 April 1987, in the grade of E-5. He was credited with 8 years, 1 month, and 26 days of net active service this period. His DD Form 214 contains the following entries in: * item 24 (Character of Service) Under Honorable Conditions (General) * item 25 (Separation Authority) AR [Army Regulation] 635-200, Paragraph 14-12c * item 26 (Separation Code) JKK * item 27 (Reentry Code) RE-3 * item 28 (Narrative Reason for Separation) Misconduct - drug abuse Additionally, his DD Form 214 shows he was awarded or authorized the: * Marksman Qualification Badge (M-16) * Expert Qualification Badge (Hand Grenade) * Expert Infantryman Badge * Army Service Ribbon * Overseas Service Ribbon * Good Conduct Medal (2nd Award) * Noncommissioned Officers Professional Development Ribbon (Numeral 2) 12. In reaching its determination, the Board can consider the applicant's petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found partial relief warranted. The Board carefully considered the applicant s contentions, the military record, all supporting documentation and applicable regulatory guidance. The Board considered denying relief based on the totality of the applicant s misconduct and in the absence of post-service achievements or letters of support to weigh in favor of a clemency determination. However, the Board in reviewing the administrative notes below agreed that the applicant had a period of prior honorable service which is not reflected on his DD214. Therefore, based on the preponderance of the documentation available for review, the Board determined that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :xx :xx :xx GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented 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 amending the applicant s DD Form 214 for the period ending 23 April 1987 to show in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 790228 UNTIL 850528 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 any other relief not stated above. 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. ADMINISTRATIVE NOTE(S): A review of the applicant's record shows his DD Form 214, for the period ending 23 April 1987, is missing important entries that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE SERVICE FROM 790228 UNTIL 850528 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 635-5-1 (Separation Program Designator (SPD) Codes) provides that separation codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty. Separation code narrative reasons are aligned with applicable regulatory authority paragraphs. The separation code "JKK" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, by narrative reason of drug abuse rehabilitation failure. 3. 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. 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/NR) 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) AR20230000509 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1