ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 March 2020 DOCKET NUMBER: AR20170000654 APPLICANT REQUESTS: an upgrade of his character of service from under honorable conditions (general) to 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) FACTS: 1. The applicant states his problems in the military were due to lack of sleep and medication he was taking at the time. He further states he was administered the wrong medication that caused him to be high most of the time and he overdosed on alcohol. 2. The applicant enlisted in the Regular Army on 2 October 2013. 4. His Enlisted Record Brief shows he received a suspension of favorable personnel actions (FLAG) on 15 April 2015. Additionally, the highest rank he held was Private (PV2)/E-2, and he was reduced in rank to Private (PVT)/E-1 on 15 September 2015. 5. The applicant’s military records are void of documentation that references particular incidents leading to his flag and his subsequent discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2) (Commission of a Serious Offense – Abuse of Illegal Drugs). 6. The separation authority approved the recommendation for the applicant's separation on 19 October 2015, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), because of misconduct – abuse of illegal drugs, and directed the applicant's receipt of a under honorable conditions (general) character of service. 7. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) (misconduct – abuse of illegal drugs), with an under honorable conditions (general) character of service, on 12 November 2015. His DD Form 214 also confirms he completed 2 years, 1 months, and 11 days of net active service. 8. An advisory opinion was obtained from the Army Review Boards Agency (ARBA) Senior Medical Advisor on 12 February 2020. The Senior Medical Advisor provided the following medical opinion, based on a review of the applicant's available medical records: a. The applicant had multiple substance use and dependence disorders and Adjustment Disorder prior to and during his military service. However, his record also shows he was using multiple substance due to pending separation from the Army at the time of his discharge. His substance use disorders preceded his entry into the Army. b. His medical records indicate that the applicant did meet medical retention standards with respect to behavioral health diagnoses in accordance with Army Regulation 40-501 (Standards of Medical Fitness). c. The applicant’s behavioral health diagnoses were not mitigating factors in the misconduct that led to his discharge. 9. 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. 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, 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. 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. 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. 12/2/2020 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. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 (Separation for Misconduct) 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 (UOTHC) 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. b. Section III (Acts or Patterns of Misconduct), Paragraph 14-12 (Conditions that subject Soldiers to discharge) states, Soldiers are subject to action per this section for the commission of a serious offense. c. Paragraph 14-12(c)(2) (Commission of a serious offense) states commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manuel for Court-Martial (MCM). Abuse of illegal drugs is serious misconduct. The Separation in all separations authorized by this paragraph will be ""misconduct – abuse of illegal drugs." 3. Army Regulation 635-200, Section II (Types of Characterization or Description), paragraph 3-7 (Types of administrative discharges/character of service) provides the below guidance for honorable and general characterizations of service. a. Paragraph 3-7a states, 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. When a Soldier is discharged before the expiration term of service (ETS) for a reason for which an honorable discharge is discretionary, the following considerations apply: (1) Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). (2) A Soldier will not necessarily be denied an honorable discharge solely by reason of the number of convictions by court-martial or actions under the Uniform Code of Military Justice, Article 15. Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge. (3) An honorable discharge may be furnished when disqualifying entries in the Soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is a pattern of behavior and not the isolated incident that should be considered the governing factor in determination of character of service. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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//