IN THE CASE OF: BOARD DATE: 8 July 2021 DOCKET NUMBER: AR20210007599 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 5 August 2020 FACTS: 1. The applicant states he made bad choices in the past but he served for more than three years. He would like the opportunity to use the GI Bill to continue his education in order to improve his quality of life. He asks that the Board please consider his three years of service when evaluating his case. 2. The applicant enlisted in the Regular Army on 2 March 2011. He completed his initial entry training, was awarded military occupational specialty (MOS) 91D (Power Generation Equipment Repairer), and was assigned to a unit at Hunter Army Airfield, Georgia. He subsequently deployed with his unit to Afghanistan from 12 December 2012 to 22 August 2013. 3. Permanent Orders 62-09, issued by 2nd Battalion, 3rd General Support Aviation Regiment, 3rd Combat Aviation Brigade, Hunter Army Airfield, Georgia, on 3 March 2014, awarded the applicant the Army Good Conduct Medal for exemplary behavior, efficiency, and fidelity in active Federal service from 2 March 2011 to 1 March 2014. 4. An Alcohol and Drug Control Officer (ADCO) representing the Army Substance Abuse Program (ASAP) rendered a memorandum on 3 June 2014, to inform the applicant’s immediate commander that the applicant had tested positive for Tetrahydrocannabinol (THC) as a result of a urine specimen collected on 27 May 2014. The ADCO directed the applicant’s immediate commander to contact the U.S. Army Criminal Investigation Command (CID), flag the applicant, and to consult with trial counsel supporting the unit. The ADCO further advised the applicant’s immediate command that regardless of action taken, the applicant must be referred to the ASAP Rehabilitation Section. 5. A DA Form 4856 (Developmental Counseling Form) shows the applicant’s platoon sergeant counseled him regarding his positive drug test results on 5 June 2014. a. He advised the applicant that his misconduct was in violation of policy prescribed in Army Regulation 600-85 (The Army Substance Abuse Program), and that such misconduct was unacceptable and would not be tolerated. He informed the applicant that he was recommending that the applicant be barred from reenlistment, flagged, receive punishment under the Uniform Code of Military Justice (UCMJ), and possibly processed for separation from service pending the outcome of the investigation. b. The platoon sergeant advised him that continued conduct of that nature could result in actions to separate him from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 5, 9, 13, or 14. The platoon sergeant further advised him that should he be involuntarily separated, he could receive an honorable discharge, a general discharge under honorable conditions, or an under other than honorable conditions discharge and described the potential impact of each type of discharge on future benefits and civilian employment opportunities. It was also explained that although there are agencies to which he could apply to have the character of his discharge changed, it was unlikely that any such application would be successful. 6. A DA Form 4856 shows the applicant’s immediate commander counseled him regarding his positive drug test results on 18 June 2014. The commander informed the applicant of his intent to initiate action to separate him from the Army under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c due to commission of a serious offense. The commander also advised the applicant he would be flagged under the provisions of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (FLAG)) and while flagged, the applicant would be ineligible to attain promotable status and if already promotable would lose that status, would not be eligible for favorable actions (i.e. awards), would not be authorized to attend military schools, and could not attain any leadership positions. The commander advised the applicant the flag would remain in effect until a determination was made by the separation authority. In conclusion, the commander reiterated the potential impact of an involuntary separation upon the applicant’s future. 7. A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 19 June 2014, shows a flag was initiated against the applicant for adverse action due to drug abuse, effective 5 June 2014. 8. A DA Form 268, dated 25 June 2014, shows a flag was initiated against the applicant for involuntary separation, effective 18 June 2014. 9. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the applicant accepted field-grade nonjudicial punishment on 11 July 2014, under the provisions of Article 15, UCMJ. This punishment was imposed upon the applicant for violating Article 112a, UCMJ by wrongfully using marijuana, a Schedule I controlled substance, between on or about 27 April 2014 and 27 May 2014. His imposed punishment consisted of his reduction in rank/grade from specialist/E-4 to private/E-2; extra duty for 45 days; and restriction to the limits of the company area, dining/medical facility, and place of worship for 45 days. 10. A DA Form 4856 shows the applicant was counseled on 4 August 2014 regarding his failure to comply with restrictions imposed by his battalion commander on 2 August 2014, as specified under Article 15, UCMJ. The applicant was advised this could result in further punishments. The applicant was also reminded that continued conduct of such nature could result in actions to involuntarily separate him from the Army under the provisions of Army Regulation 635-200, and the potential impact of each type of discharge on future benefits and civilian employment opportunities. 11. An ASAP Licensed Professional Counselor rendered a memorandum summarizing rehabilitation efforts for the applicant on 15 August 2014. It was noted the applicant was referred to the ASAP due to a positive test for THC 25 May 2014 and an initial screening revealed the substances of abuse were cannabis and alcohol. Further evaluation determined on 19 June 2014, the applicant had problems significant enough to warrant enrollment into outpatient treatment. While enrolled in the treatment program, the applicant reported he had continued to consume alcohol despite treatment services provided. It was determined that future rehabilitation efforts in a military environment were not practical in light of the applicant’s lack of progress. As a result, the ASAP staff recommended that the applicant be separated from military service as a rehabilitation failure. 12. A DA Form 4466 (Patient Progress Report), dated 19 August 2014, shows a determination was made by the applicant’s command to release the applicant from the Alcohol/Drug Abuse Rehabilitation Program due to his unsatisfactory performance and conduct while participating in the program. 13. The applicant’s immediate commander informed the applicant on 27 October 2014 that he was initiating actions to involuntarily separate the applicant under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c (2), for misconduct – abuse of illegal drugs. The applicant was advised the catalyst for this action was his wrongful use of marijuana. The commander advised the applicant that he was recommending the applicant receive a general, under honorable conditions discharge; however, neither the intermediate commander nor the separation authority were bound by his recommendation as to the characterization of his service and he specifically stated the separation authority could direct that his service be characterized as honorable or general. He advised the applicant of his rights and referred him to legal counsel. The applicant acknowledged receipt of this notification on 27 October 2014. 14. The applicant consulted with counsel on 27 October 2014 and was advised of the basis for the contemplated action to separate him and of the rights available to him. a. He acknowledged his understanding that since he had less than six years of total active and Reserve service at the time of separation, and since he was not being considered for a discharge under other than honorable conditions, he was not entitled to have his case heard before an administrative separation board. b. He waived his right to be represented by counsel and elected not to provide statements in his own behalf. He also acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that with a discharge that is less than honorable, he could make application to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records for upgrading; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 15. The applicant's immediate commander formally recommended the applicant's separation on 30 October 2014, under the provisions of Army Regulation 635-200, paragraph 14-12c (2). The applicant’s intermediate commander recommended approval on 30 October 2014, and that the applicant be issued a general, under honorable conditions discharge. 16. The separation authority approved the applicant’s discharge on 24 November 2014, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), and directed the applicant be separated with a general, under honorable conditions discharge. 17. The applicant was discharged on 8 December 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (Drug abuse), and his service was characterized as under honorable conditions (general). Item 18 (Remarks) of the applicant’s DD Form 214 contains, in part, the entry "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE.” 18. The applicant petitioned the ADRB for an upgrade of his discharge. An ADRB letter, dated 27 January 2019, informed the applicant the ADRB considered his request, determined he was properly and equitably discharged, and denied his request for relief. 19. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD 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 for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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. 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, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. 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 appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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) AR20210007599 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1