ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:    6 May 2019

	DOCKET NUMBER:  AR20170000169


APPLICANT REQUESTS:

* an upgrade of his general, under honorable conditions discharge to honorable
* change narrative reason for separation from Misconduct (Drug Abuse)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self- Authored Statement
* Character Letter

FACTS:

1.  The applicant states:

	a.  He wants to change his discharge to honorable and to remove drug abuse and misconduct from the narrative reason for separation.  He joined the Army not for the money, but to serve his country like both his parents.  He worked without hesitation when he was told by his superiors to help out on work details.  He knows he made a terrible mistake by taking drugs after losing four people in his life in 2013, it affected him more than he thought.  After he returned home he found out his father's health had deteriorated and his mother had a hard time taking care of him as his father was in a wheelchair, this upset and depressed him.

	b.  This was his first time taking drugs and he knows that it was not a problem solver, but the biggest mistake of his life.  He never lied about the drug use, always told the truth and accepted punishment for it.  He was told after completing all punishment that they were going to retain him and he was advised not to get into any more trouble, which he never did.  He completed his punishment, lost pay, and when he thought everything was behind him he was told to leave the military.  He questions why they did not ask him to leave before they took his money, and had him cleaning and doing other details around the base.  He feels his discharge was unfair it was based on one isolated incident in 23 months of service with no other adverse action.
2.  The applicant provides a statement from an individual at the Atlanta Department of Veterans Affairs (VA) in GA, which states he is a model citizen, and that he has worked since the age of 12.  He worked in and outside of his church, helping on youth projects and the youth ministry.  Before going into the military he helped his mother take care of his father anyway he could and also helped others in need.  He asks the Board to change his discharge to honorable and not allow one mistake to tarnish his military record and affect his life.

3.  A review of the applicant's service records shows:

	a.  On 14 February 2012, he enlisted in the Regular Army.

	b.  On 21 May 2013, he accepted nonjudicial punishment for wrongfully using marijuana.  His punishment included reduction to private/E-2.

	c.  On 21 November 2013, the applicant's immediate commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph      14-12c, commission of a serious offense for testing positive on a command directed urinalysis for marijuana.

	d.  On 2 December 2013, he consulted with legal counsel and was advised of his rights for the contemplated action to separate him for commission of a serious offense.  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him
* he may be ineligible for many or all benefits as a veteran under both Federal and State laws

	e.  The applicant submitted a statement on his behalf:

* he highlighted his service and recounts the personal circumstances that led him to use the illegal drug of marijuana
* after a year into his duty he made almost no mistakes and only had minimum counseling statements on his record
* he experienced the death of multiple close family members
* his uncle instilled in him the value of doing things right no matter how long the job takes and he taught him his mechanical skills, his uncle that mentored him died on 20 March 2013 and the applicant was released that same week to go home to attend the funeral
* with a heavy heart he made one of the worst decisions of his whole Army career and that was to use the illegal drug of marijuana
* he later returned to the unit to test positive for urinalysis and was then served with a field grade Article 15, his command suspended the punishment and directed him to attend the Alcohol Substance Abuse Program for rehabilitative purposes
* his will and fortitude were tested again several months later with the death of another uncle and his grandmother, he did not make the same mistake but when he returned to duty they told him they were initiating separation
* he was worried but continued to do his job he remained trouble free and wanted to continue his military career
* he was unaware that he was being chaptered out because he thought he was being retained and the article 15 was his punishment not a chapter

	f.  On 3 December 2013, the immediate commander initiated action to separate the applicant under the provisions of AR 635-200, chapter 14-12c.  He recommended that the applicant be separated, but that the separation be suspended for a period of 10 months (not to exceed 12 months).

	g.  On 18 December 2013, the intermediate commander recommended approval of the separation action with a general, under honorable conditions.

	h.  On 26 December 2013, the separation authority approved the applicant's separation, waiver of further rehabilitative efforts, and directed he be discharged with a general, under honorable conditions discharge.

	i.  The applicant was discharged on 14 January 2014.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, with a characterization of service as general, under honorable conditions.  He completed 1 year, 11 months, and 1 day of active service.  It also shows he was awarded or authorized National Defense Service Medal and Army Service Ribbon.  His DD Form 214 shows in:

* Item 26 (Separation Code) - JKK
* Item 27 (Narrative Reason for Separation) - Misconduct (Drug Abuse)

4.  The applicant applied to the Army Discharge Review Board (ADRB) and on 4 August 2015, the ADRB informed the applicant that after careful consideration, the ADRB determined he was properly and equitably discharged.  Accordingly, his request to change the characterization of service and reason for separation was denied.

5.  By regulation:

	a.  AR 635-200, chapter 14-12c (Commission of a Serious Offense) establishes policy and procedures for separation personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.

	b.  The separation program designator (SPD) code associated with the narrative reason for separation as misconduct under the regulatory authority of AR 635-200, chapter 14-12c is “JKK.”

6.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was warranted.  Based upon the type of misconduct, it being an isolated incident, as well as the demonstrated growth and acceptance of the misconduct by the applicant, the Board concluded that upgrading the characterization of service to Honorable and changing the narrative reason for separation to Secretarial Authority was appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing 

* characterization of service as “Honorable”
* narrative reason for separation as “Secretarial Authority”

	 
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 Army Board for Correction of Military Records (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 (Personnel Separations – Active Duty Enlisted Administrative Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) provided an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7c (Under Other Than Honorable) states is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances:

* When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of soldiers of the Army.
* When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of soldiers of the Army.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) 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 type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  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 based on equity, injustice, or clemency grounds, BCM/NRs 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.  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.

ABCMR Record of Proceedings (cont)	 AR20170000169


7


1