IN THE CASE OF:  
BOARD DATE: 22 March 2021 
DOCKET NUMBER: AR20200003135 
APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20120013042 on 7 February 2013.  Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 14 September 2019 
FACTS: 
1. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120013042 on 7 February 2013. 

2. 
The applicant states he had surgery to repair his lower right leg, during which two plates and fourteen screws were inserted.  He has trouble walking at times and has severe pain. He is not allowed to seek any Department of Veterans Affairs (VA) benefits due to his unfair discharge.  Having a UOTHC discharge (for drug abuse) is looked at as almost criminal.  He would go back and do a lot of things differently.  This discharge has torn him down mentally. 

3. 
The applicant enlisted in the Regular Army on 17 July 2007. 

4. 
The applicant accepted non-judicial punishment (NJP) on 9 December 2009, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, on or about 16 November 2009, 17 November 2009, and 23 November 2009. A portion of his sentence, related to a reduction in rank/grade and forfeiture of pay, was initially suspended; however, that suspension was vacated on 23 December 2009, due to the applicant's wrongful possession of marijuana on or about 16 December 2009. 

5. 
The applicant accepted NJP on 20 January 2010, under the provisions of Article 15 of the UCMJ, for wrongfully using marijuana, between on or about 7 November 2009 and on or about 7 December 2009. 

6. 
A Report of Behavioral Health Evaluation, dated 21 January 2010, shows the applicant was deemed mentally capable to understand and participate in board proceedings deemed necessary by his command. 

7. 
The applicant's immediate commander notified the applicant on 9 March 2010 of his intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense. 

8. 
The applicant consulted with counsel on 11 March 2010 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He voluntarily waived consideration of his case by an administrative separation board, contingent upon receiving an under honorable conditions (general) discharge.  He elected not to provide a statement in his own behalf. 

9. 
The applicant's commander formally recommended the applicant's separation from service on the same date, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. 

10. 
The separation authority disapproved the applicant’s request for a conditional waiver on 5 April 2010, and referred the case to an administrative separation board. 

11. 
Subsequent to consulting with counsel on 19 April 2010, the applicant withdrew his conditional waiver request and acknowledged he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge. 

12. 
The separation authority approved the recommended discharge on 23 April 2010 and directed that the applicant be reduced to the lowest enlisted grade and be issued a UOTHC discharge. 

13. 
The applicant was discharged on 17 June 2010. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, by reason of misconduct (drug abuse); he was discharged in the lowest enlisted grade; and his service was characterized as UOTHC. 

14. 
The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB considered his request on 24 May 2011, determined his discharge was both proper and equitable, and denied the request. 

15. 
The Board should consider the applicant's overall record and statement in accordance with the published equity, injustice, or clemency determination guidance. 


BOARD DISCUSSION: 
1. 
After reviewing the application and all supporting documents, and published DoD guidance for consideration of discharge upgrade requests, the Board determined relief was not warranted. 

2. 
The Board considered the applicant’s statement and documents provided by the applicant, his military service record, the frequency and nature of his misconduct and the reason for his separation. Based on the multiple offenses leading to the applicant’s separation, the Board concluded that any mitigation for the offenses was outweighed; the applicant provided no post-service evidence or reference letters in support of a clemency determination.  As a result, the Board found there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 


BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
:XX :XXX :XXX 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. 
X 
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): 
Not Applicable 
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 635-200 sets forth the basic authority for the separation of enlisted personnel.  The version in effect at the time provided that: 


a. 
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. 

b. 
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 UOTHC was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 


3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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//