BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160000713 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160000713 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_____________ CHAIRPERSON 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. BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160000713 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1.  The applicant requests an upgrade of his discharge under honorable conditions (general) and narrative reason for separation. 2.  The applicant states he is requesting an upgrade of the characterization of his service in order to set a better example for his children. At the time of his discharge, he was an immature young man who did not have the foresight of his future responsibilities or the effects his actions would have on them. As a father, his three children look up to him and he wants to set a better example by completing his education, as well as obtaining a job which will allow him to comfortably provide for them. In his area, there are a number of positions available to military veterans; however, presentation of a DD Form 214 (Certificate of Release or Discharge from Active Duty) is usually required. Unfortunately, his current service characterization makes him less marketable. 3.  The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2.  The applicant enlisted in the Regular Army on 22 January 2003 at over 22 years of age. He completed training and he was awarded military occupational specialty 11B (Infantryman). 3.  His records contain a DA Form 4856 (Developmental Counseling Form), dated 4 August 2003, which shows he was negatively counseled for admitting to a fellow Soldier on 28 June 2003 that he wrongfully used a controlled substance in order to test positive in a unit urinalysis to facilitate separation from the Army. However, while the applicant did not test positive in the urinalysis, this does not change his admission of guilt. 4.  the evidence shows he served in Iraq from 11 March 2004 through 10 March 2005. On 1 February 2005 while stationed in Iraq and serving in the rank/grade of specialist/E-4, he reenlisted for a period of 6 years. As part of his reenlistment, he contracted to receive current station stabilization at Fort Hood, TX, and a lump sum payment in accordance with Military Personnel Message 04-354. 5.   The evidence shows the applicant was counseled by his company commander, platoon leader, and platoon sergeant prior to initiating 30 days of unit block leave upon redeployment on how to conduct himself while on leave. One of the things specifically stated in the counseling session was not to use controlled substances while on leave. 6.  His records contain several DA Forms 4856 which show he was repeatedly counseled for wrongfully using a controlled substance, failing to report to duty on time, failing to report to duty, falsifying a statement, and disobeying a noncommissioned officer. 7.  The evidence contained in the applicant's Official Military Personnel File shows his urine specimen tested positive for tetrahydrocannabinol (commonly known as THC – the principal psychoactive constituent of marijuana) during a command-directed urinalysis on 27 April 2005. 8.  His records contain a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 28 June 2005, which shows: a. The applicant accepted nonjudicial punishment for: * wrongfully using marijuana at or near Fort Hood, TX, between on or about 27 March to 27 April 2005 * absenting himself from his unit without authority for the period 9 May through 13 June 2005 b. The applicant did not appeal his punishment, which included reduction in rank from specialist to private E-2, forfeiture of $692.00 pay, restriction for 45 days, and extra duty for 45 days. 9.  His immediate commander notified him on 9 August 2005 of his intent to initiate separation action against him by reason of misconduct – commission of a serious offense – under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for being absent without leave (AWOL) between on or about 9 May through 13 June 2005 and for wrongful use of marijuana between on or about 27 March and 27 April 2005. The applicant acknowledged receipt of the notification memorandum the same day. 10.  On 26 August 2005, he consulted with legal counsel and was advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights that were available to him. He waived his right to an administrative separation board and statements in his own behalf were not submitted with the request. He acknowledged that he understood he could encounter substantial prejudice in civilian life if a general discharge was issued to him. He also acknowledged that he may be ineligible for many or all benefits as a veteran under both Federal and State laws. 11.  On 7 September 2005, he signed a memorandum of record wherein he waived his right for legal counsel under the provisions of Army Regulation  635-200 paragraph 14-12c. The applicant stated he did not want legal counsel, all he wanted was to be out of the U.S. Army. 12.  On 19 October 2005, the separation authority approved the discharge action under the provisions of Army Regulation 635-200, paragraph 14-12c(2), and directed his discharge with a characterization of service of under other than honorable conditions. 13.  He was discharged from the Army on 2 November 2005. 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 (abuse of illegal drugs) with characterization of his service of under other than honorable conditions. He completed 2 years, 7 months, and 23 days of net service during this period with time lost for the period 9 May to 12 June 2005 for being AWOL. His DD Form 214 refers to two other periods of lost time (21 to 27 September 2005 and 5 to 11 October 2005); however, his records are void of documents supporting these additional days of time lost. 14.  On 2 July 2007, the applicant petitioned the Army Discharge Review Board (ADRB) to upgrade his discharge. As a result, the characterization of his service was upgraded to general under honorable conditions on 31 July 2008. The ADRB did not change the applicant’s reason for discharge. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. b.  Paragraph 3-7a provides that 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. DISCUSSION: 1.  The applicant enlisted in the Regular Army on 22 January 2003 and he successfully completed training as an infantryman. However, on 28 June 2003 prior to his service in Iraq, he voluntarily admitted he wrongfully used a controlled substance in order to test positive in a unit urinalysis to facilitate separation from the Army. While the applicant did not test positive in the urinalysis, this does not change his admission of guilt. 2.  The applicant's contention that he was an immature young man who did not have the foresight of his future responsibilities or the effects his actions would have on them was noted. In his separation papers, he acknowledged he may be ineligible for many or all benefits as a veteran under both Federal and State laws, which obviously could hinder his marketability for employment as a military veteran. The applicant was over 25 years of age at the time of his punishable AWOL and marijuana offenses. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. His continued use of illegal drugs clearly shows the quality of his service was diminished. 3.  An 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. The applicant's record contains a history of negative counseling for wrongfully using a controlled substance, failing to report to duty on time, failing to report to duty, falsifying a statement, and disobeying a noncommissioned officer, as well as nonjudicial punishment for being AWOL and wrongfully using illegal drugs. 4.  The evidence of record shows the applicant committed serious offenses on more than one occasion. Accordingly, his commander initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. His DD Form 214 shows the narrative reason for his separation was for misconduct – abuse of illegal drugs – which corresponds directly with the evidence of record. 5.  It is clear that his chain of command considered all facets of his service and recommended his discharge under other than honorable conditions, which is normally assigned in similar circumstances. However, on 31 July 2008, the ADRB upgraded the characterization of his service to general under honorable conditions. From a statutory or regulatory standpoint, there is neither an error nor an injustice in his separation processing and his current characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000713 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000713 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2