ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20170000430 APPLICANT REQUESTS: an upgrade of his discharge from under other than honorable conditions to general under honorable conditions. 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) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 that since his last request he has continued to live a life of honesty and integrity. He has been employed by the county law enforcement agency from February 2007 to October 2016. 3. A review of the applicant’s service record show: a. He enlisted in the Regular Army (RA) on 28 October 2004. b. On 25 May 2005, he received nonjudicial punishment for being absent without leave. c. On 27 July 2005, the Army Substance Abuse Program sent a letter to the immediate commander advising of mandatory actions required by AR 600-85 (Personnel-General Alcohol and Drug Abuse Testing Program) as a result of the applicant’s urine testing positive. d. On 11 August 2005, the applicant was notified of his immediate commanders intent to separate him under the provisions of AR 635-200, chapter 14-12(c) (commission of a serious offense) for the wrongful use of methamphetamines with an under other than honorable conditions discharge. a. e. On 1 September 2005, he was advised by his consulting counsel of the basis for the contemplated action to separate him for commission of a serious offense under the provisions of AR 635-200, chapter 14-12(c), its effect, of the rights available to him, and the effect of any action taken by him in waiving his rights. He acknowledged: * he had been afforded the opportunity to consult counsel * that he was being consider for service characterization under other than honorable conditions f. The commander formally initiated separation under AR 635-200, chapter 14-12(c) and the chain of command recommended approval. g. On 7 December 2005, the separation authority approved separation under AR 635-200, chapter 14-12(c) with the issuance of an under other than honorable conditions discharge. h. On 16 December 2005, the applicant was discharged from active duty. His DD Form 214 shows he was discharged for misconduct-serious offense under the provisions of AR 635-200, Chapter 14-12(c). It shows he completed 1 year, and 5 days of active service and he had 25 days of lost time. It also shows he was awarded or authorized. * National Defense Service Medal * Army Service Ribbon * Global War on Terrorism Service Medal 4. By regulation, members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized 5. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there is insufficient evidence to grant relief. Based upon a short term of service completed prior to the misconduct, the Board did not find any evidence of error, injustice, or inequity. Additionally, the Applicant did not provide character witness statements or post-service achievements for the Board to consider, so based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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. 5/15/2019 X CHAIRPERSON Signed by: 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 (AR) 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. 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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 -12(c) (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 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, 1. 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.