IN THE CASE OF: BOARD DATE: 14 December 2021 DOCKET NUMBER: AR20210008625 APPLICANT REQUESTS: Correction of his NGB Form 22 (Report of Separation and Record of Service) and DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 3 September 2009, to show his service was characterized as honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 22 January 2021 * DA Form 4856 (Developmental Counseling), dated 28 April 2009 * Urinalysis result printout, dated 19 May 2009 * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 June 2009 * Memorandum, dated 29 June 2009, subject: Recommendation for Separation * Orders Number 245-1009, issued by Headquarter, U.S. Army Garrison, Fort McCoy on 2 September 2009 * NGB Form 22, for the period ending 3 September 2009 * DD Form 214, for the period ending 3 September 2009 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. 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 he received an under honorable conditions discharge from the Illinois Army National Guard (ILARNG) and he received an under other than honorable conditions (UOTHC) discharge from the Army. He was forced to admit that he had smoked marijuana. Evidence showed negative results on a blood draw test dated 8 June 2009, with an Article 15 dated 17 June 2009. He has never tested positive on any drug test. 3. The applicant enlisted in the ILARNG on 1 November 2006. He entered initial active duty for training (IADT) on 29 May 2007, completed his period of IADT, was awarded MOS 88M, and was released from active duty (REFRAD) and returned to the control of the ILARNG. 4. The applicant was REFRAD on 28 September 2007 and was returned to the control of his ILARNG unit of assignment. The DD Form 214 he was issued shows he completed four three months and zero days of active duty and his service was characterized as honorable. The narrative reason for separation was "Release from Active Duty Training.” 5. Orders Number 231-086, issued by the ILARNG on 18 August 2008, ordered the applicant to active duty for a period of 400 days, in support of Operation Enduring Freedom. He was ordered to report to Fort Bragg, NC on 29 August 2008. 6. The applicant deployed to Afghanistan from on or about 29 October 2008 through on or about 17 August 2009. 7. The applicant record contains a U.S. Army Criminal Investigation Command (CID) Form 94 (Agent’s Investigation Report), which notes the applicant was advised of his rights on 9 March 2009. He waived his rights and admitted he used marijuana while in Afghanistan, he further stated that he received the marijuana from a fellow Soldier. The applicant pleaded guilty at his hearing on 9 June 2009. 8. The applicant accepted punishment on 17 June 2009, under the provisions of Article 15 of the UCMJ, for wrongfully using marijuana at or near Camp Eggers, Afghanistan, between on or about 1 December 2008 and on or about 31 December 2008. The punishment imposed was reduction to the grade of E-1, forfeiture of $699.00 pay per month for two months, and extra duty for 45 days. 9. The applicant's commander notified the applicant on 21 June 2009 that he had initiated actions to separate the applicant from service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct – commission of a serious offense. The commander cited the applicant's wrongful use of marijuana between on or about 1 December 2008 and on or about 31 December 2008, which resulted in Field Grade Article 15 on 17 June 2009. 10. The applicant consulted with counsel on 21 June 2009 and acknowledged receipt of the notification memorandum. He waived his right to consideration of his case by a board of officers and personal appearance before a board of officers. He chose not to submit a statement in his own behalf. 11. The applicant's commander formally recommended the applicant's separation from service on 29 June 2009, under the provisions of Army Regulation 635-200, paragraph 14-12c. 12. The applicant was discharged on 3 September 2009, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - drug abuse. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 13. The applicant was discharged from the ARNG and the Reserve of the Army on 3 September 2009, under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-35l (1), by reason of acts or a pattern of misconduct. The NGB Form 22 he was issued confirms his service was characterized as under honorable conditions. 14. The applicant provides a DA Form 4856, dated 28 April 2009, and a printout of a blood and urinalysis test result for drug testing, dated 18 June 2009, which shows negative results for controlled substances. 15. The Board should consider the applicant's statement and overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was partially warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement (circumstances regarding the misconduct), his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error, but was too harsh, and voted to upgrade his character of service. Board members recommended he addresses his ARNG character of service with his State ARNG and/or the NGB. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X: X: X: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that the Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 3 September 2009 to show his character of service as general, under honorable conditions. 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 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. 3. 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. 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 UOTHC discharge was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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// ABCMR Record of Proceedings (cont) AR20210008625 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1