IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230002883 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-Authored Statement * 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 he got out of the Army in 1985 due to a positive drug test (marijuana). He is a father, grandfather, and a husband who has been married for 39 years. He owns his own home, and he makes payments on time. He is an upstanding citizen and has held a full-time job since leaving the Army. He asks to have the discharge changed so he can buy back the five years he was active. While he was in the Army, he had no issues other than the positive drug tests. 3. The applicant enlisted in the Regular Army on 2 October 1980. His military occupational specialty was 63S (Heavy Wheel Vehicle Mechanic). 4. He served in Alaska from 10 March 1981 through 9 September 1982. 5. The applicant reenlisted in the Regular Army on 31 October 1984 for six years. 6. DA Form 2496 (Disposition Form), dated 19 April 1985, shows a urinalysis notification regarding specimens received at Alcohol and Drug Prevention Control Program (ADAPCP) on 18 April 1985 for specimens collected on 21 March 1985. The applicant’s SSN shows a positive result for tetrahydro cannabidiol (THC). 7. The applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 1 May 1985, for wrongfully using marijuana sometime between 7 March 1985 and 21 March 1985. His punishment consisted of reduction to specialist 4/E-4 and extra duty. 8. The applicant’s chain of command wrote letters that attest to his initiative, dedication to duty, and performing his duties in an exemplary manner. 9. The applicant’s command sergeant major (CSM) noted that even though the entire chain of command was calling him “quality,” the Department of the Army quality point work sheet said otherwise. The CSM recommended separation 10. The applicant’s immediate commander notified him on 17 May 1985 that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14, for misconduct-abuse of illegal drugs. His commander recommended he receive an honorable or general discharge certificate. The applicant acknowledged receipt of the notification on 17 May 1985. 11. The applicant consulted with legal counsel on 21 May 1985 and was advised of the basis for his separation and the procedures and rights that were available to him. a. He acknowledged that he may expect to encounter substantial prejudice in civilian life if discharged under honorable conditions (general). b. He elected to submit a statement in his own behalf; wherein, he stated he did not deny he used marijuana in the past, he knew it was wrong and there was no excuse for his conduct. He had given up using marijuana and saw what it could do to your health and to his military career. He had a family to care about and take care of. He believed that he has been a good Soldier and had made positive contributions to his unit and to the Army. He did not believe he had lost the respect of his subordinates, peers, or superiors. He would never involve himself in any such conduct again. He had more than himself to think about. He had his family and military career. He requested that he be retained in the Army. 12. The applicant's immediate commander formally recommended the applicant be retained on active duty on 21 May 1985. The commander stated the applicant was being processed for immediate discharge under the provisions of AR 635-200, paragraph 14-12d, for misconduct-due the commission of a serious offense. He noted the applicant had on between 7 March 1985 and 21 March 1985, wrongfully used marijuana in violation of the UCMJ. Despite the seriousness of the offense, the commander recommended that the applicant be retained on active duty. His recommendation was based upon his belief that he was truly repentant for his actions and that he would not become involved with marijuana again in the future. The applicant had recently been tested by urinalysis for THC and cocaine with a negative result. Prior to the incident the applicant had no other disciplinary actions taken against him in his five years of military service. 13. The applicant underwent a mental status evaluation on 4 June 1985, which shows he had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and met retention requirements. 14. His chain of command recommended retention on active duty on 7 June 1985. 15. The DA Form 2496 dated 25 June 1985 shows the purpose of the personnel officer’s form was to obtain the Headquarters, Command, Commander’s decision regarding the applicant in the recommendation for his elimination under the provisions of AR 635-200, Chapter 14-12c, for commission of a serious offense-abuse of illegal drugs. 16. On 9 July 1985, the applicant’s commander approved the separation with a general discharge certificate. The execution of the approved separation was suspended until 24 December 1985 at which time the approved separation would be executed if no recommendation from the applicant’s chain of command for continued retention had been submitted with justification for consideration. The applicant would be afforded full rehabilitative opportunities during the period of suspension and further added that he undergoes urinalysis testing monthly with the results provided. 17. DA Form 2496, dated 30 September 1985, shows a urinalysis notification regarding specimens received at ADAPCP on 30 September 1985 for specimens collected on 13 August 1985. A positive result for THC is next to the applicant’s SSN. 18. The separation authority initiated action to vacate the suspension of the approved discharge on 10 October 1985, based on abuse of illegal drugs. He directed immediate execution of discharge instead of on 24 December 1985. 19. The separation authority approved the recommended discharge action, under the provisions of AR 635-200, Chapter 14-12c, on 16 October 1985 and directed that the applicant be furnished a General Discharge Certificate. 20. The applicant submitted a statement, dated 16 October 1985, which states he had stayed away from marijuana and now he had another positive urinalysis for 13 August 1985. He knew this could not be possible for he learned what marijuana could do to him and his future. He could not afford to fight this action because he had a family to take care of. He would be thrown out of the service whether he fought it or not and he could not afford a good lawyer strong enough to go up against the system and keep his family going too. So, he had no choice but to resign himself from the U.S. Army. He made positive contributions in every unit he had been in. His records show that he has been the best be as a Soldier for the past five years in the military except 7 March 1985, his first Article 15 while serving in the military. He believed he had served well and deserved more than a general discharge. 21. The applicant was discharged on 22 October 1985. His DD Form 214 shows he was discharged under the provisions of AR?635-200, paragraph 14-12c, for misconduct- commission of a serious offense, with Separation Code JKQ and Reenlistment Code 3. His service was characterized as under honorable conditions (general). He completed 5 years and 21 days of net active service this period. His awards included the Army Good Conduct Medal and the Overseas Service Ribbon. 22. Soldiers are subject to separation under the provisions AR 635-200, Chapter 14, for commission of a serious offense. A discharge under other than honorable conditions (UOTHC) 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 overall record. 23. 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: The Board carefully considered the applicant's request, 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 found the statement provided by the applicant insufficient 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. The Board concurs with the corrections described in the Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 making the corrections described in Administrative Note(s) below. 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 upgrading the character of service. 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 22 October 1985, is missing important entries that 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 ACTIVE SERVICE FROM 801002 UNTIL 841030 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. AR 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards Discharge Review Boards and Boards for Correction of Military/Naval Records Service (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) AR20230002883 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1