ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 April 2019 DOCKET NUMBER: AR20160016614 APPLICANT REQUESTS: his under other than honorable conditions 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 ofthe United States) •DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 7 April 2010 •University course schedule, dated 15 January 2016 FACTS: 1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states he has been looking more for God, has been changed by Him,and wants to study to become a pastor. 3.The applicant enlisted in the Regular Army on 29 June 2006. He served in Iraq from20 August 2007 to 18 October 2008. 4.The applicant's unit conducted a mandatory urinalysis test on 18 June 2009. Theurine sample provided by the applicant tested positive for cocaine, as documented inpositive drug testing results. 5.The applicant's immediate commander counseled him on 2 September 2009,regarding his positive urinalysis test result. His commander informed him that he wouldrecommend: •the applicant receive a field grade Article 15 [nonjudicial punishment (NJP) underthe provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)] •the applicant be separated under the provisions of Army Regulation 635-200(Personnel Separations – Enlisted Personnel), paragraph 14-12c 6.The applicant accepted NJP on 29 September 2009, under the provisions of Article15 of the UCMJ, for testing positive during a unit urinalysis test. 7.The applicant was formally notified of his commander's intent to initiate separationactions against him under the provisions of Army Regulation 635-200, paragraph14-12c (Commission of a Serious Offense), by reason of his positive test result duringhis unit's urinalysis test. He acknowledged receipt of the proposed separationnotification on the same day. 8.The applicant consulted with counsel and was advised of the basis for thecontemplated action to separate him under the provisions of Army Regulation 635-200,paragraph 14-12c and its effect; of the rights available to him; and of the effect of anyaction taken by him to waive his rights. He acknowledged his understanding that hecould expect to encounter substantial prejudice in civilian life if other than honorable becondition discharge, was issued to him. He waived his right to submit a statement onhis own behalf. 9.The applicant's commander recommended his separation under the provisions ofArmy Regulation 635-200, paragraph 14-12c (Commission of a Serious Offense), byreason of the applicant's wrongful use of cocaine on or about 13 June 2009 and on orabout 18 June 2009. 10.Consistent with the chain of command recommendations, the separation authorityapproved the applicant's discharge on 13 January 2010, by reason of misconduct, anddirected that his service be characterized as general, under honorable conditions. 11.The applicant was discharged on 7 April 2010. His DD Form 214 shows he wasdischarged under the provisions of Army Regulation 635-200, paragraph 14-12c, andhis service was characterized as under honorable conditions (general). HisDD Form 214 further shows in: •Item 18 (Remarks), the entries; “SERVICE IN IRAQ 20070820 - 20081018”"MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" •Item 28 (Narrative Reason for Separation), the entry "Misconduct (Drug Abuse)" 12.The applicant petitioned the Army Discharge Review Board (ADRB) for an upgradeof his under honorable conditions (general) discharge. The ADRB denied his requeston 13 January 2012. 13.The applicant provides a college schedule in Spanish for the first semester ofcourse work towards a Pastoral degree. 14.In reaching its determination, the Board should consider the provided statementand the applicant's post-service accomplishments in accordance with the publishedequity, injustice, or clemency determination guidance. BOARD DISCUSSION After reviewing the application and all supporting documents, the Board determined that relief was not warranted. The Board found an insufficient reason was provided by the applicant to change the characterization. The Board concluded that based upon the misconduct, the characterization of service received at the time of discharge was warranted. BOARD VOTE Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant Deny 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. Microsoft Office Signature Line... 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, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the Army Board for Correction of MilitaryRecords (ABCMR) to excuse an applicant's failure to timely file within the 3-year statuteof 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 enlistedpersonnel. a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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.Paragraph 3-7b states a general discharge is a separation from the Army underhonorable 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 establishes policy and prescribes procedures for separating membersfor misconduct. Specific categories include 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). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions 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 Soldier’s overall record. 3.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations. Clemencygenerally refers to relief specifically granted from a criminal sentence. Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum. However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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.