ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170000964 APPLICANT REQUESTS: an upgrade of his discharge from general to honorable. 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 an upgrade of his discharge will help him with employment. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 30 September 1999. b. He accepted nonjudicial punishment (NJP) on 22 February 2001 for failing to be at his appointed place of duty after a dental appointment on 22 January 2001 and failing to report to physical training formation 26 January 2001. c. He was identified as having tested positive for D-Methamphetamine during a urinalysis conducted on 30 April 2001. d. He accepted NJP on 16 July 2001 for wrongful use of methamphetamines and was reduced to the grade E-1, with forfeiture of $500.00 (suspended). e. He failed to go at the time prescribed to his appointed place of duty on or about 30 July 2001, resulting in a vacation of suspension on 13 August 2001. f. On 22 August 2001, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-12c of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) due to misconduct - commission of a serious offense. g. The applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected to submit a statement in his own behalf. He acknowledged he: * understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him * understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions * understood if he received a discharge characterization of less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but he understood that an act of consideration by either board did not imply his discharge would be upgraded h. In his statement, the applicant stated he desired an honorable discharge. When he came into the Army, he had a big goal to accomplish. He wanted to go to school and get a degree in computer science and make something of himself. If he could not do that, he was going to shoot for his biggest dream and that is to become a driver or engine builder for a drag racing team. He loves that sport a lot and he was a lot knowledgeable in the automotive department. This took money and he needed the GI Bill. He did not come from a wealthy family and his parents could not help him. He also could not get that extra money because he had a child on the way and he was about to get married and get a place of his own. He knew these were his own problems and he had to solve them on his own. However, the GI Bill would help cushion the blow. He admitted his mistakes, but he was not a meth user. He was just at the wrong place at the wrong time. He was in the Marine Corps at Twenty-Nine Palms and he told him to watch his back. If only he had done everything the right way the first time he would not be writing this letter and he would have got his honorable discharge and would have been out the door. He did not know that he had a lot of people looking up at him when he joined the service. i. Subsequent to this acknowledgement and consultation with counsel, his immediate commander initiated separation action against him due to misconduct, commission of a serious offense in accordance with AR 635-200, chapter 14. His chain of command recommended approval. j. On 4 September 2001, the separation authority approved the applicant's discharge under the provisions of paragraph 14-12(c) and (d) of AR 635-200 with his service characterized as under honorable conditions (general). The applicant was discharged accordingly on 21 September 2001. g. His DD Form 214 confirms he was discharged for misconduct – commission of a serious offense, Separation Code JKQ, under the provisions of AR 635-200, paragraph 14-12c, with his service characterized as general, under honorable conditions. He completed 1 year, 11 months, and 22 days of active service. 4. By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 5. 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 not warranted. Based upon the relatively short term of service, as well as the multiple UCMJ violations spread over an extended time period, as well as a lack of mitigating factors presented by the applicant, the Board concluded that the characterization of service received at the at the time of discharge was appropriate. 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. 4/29/2019 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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. 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. c. Chapter 14, of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. It provided that action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A general discharge was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct an honorable discharge if merited by the Soldier's overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge review 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.