IN THE CASE OF: BOARD DATE: 30 March 2020 DOCKET NUMBER: AR20170001082 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his general discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DA Form 1059 (Service School Academic Evaluation Report) * nine character references * Letter of Recommendation * Letter of Authorization (LOA) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR200700 on December. 2. The applicant states he served for many years and since being release has still supported his country and the Armed forces by working in Afghanistan since May of 2005 and continues to do so. He is providing a copy of his LOA as proof of working overseas in Afghanistan since 2005 and statements made by his chain of command upon his discharge as proof for the need to change his discharge. He has applied for employment that requires an honorable discharge. He also cannot receive benefits that he has earned after more than 10 years of service to his country. He served in the military from 1994 to 2005 and was discharged for a one-time incident of drug abuse which was caused by depression and Post-Traumatic Stress Disorder (PTSD). He should be able to receive an upgrade for the over 10 years of honorable service. Please upgrade and send him a DD Form 215 (Correction to DD Form 214). He provides: * DA Form 1059, dated 5 February 2003, for the Professional Development Leadership Course * nine character references, dated February 2005, sent in support of his separation * Letter of Recommendation, dated 18 February 2008 * LOA, dated 26 May 2016, pertaining to his employment in Afghanistan 3. Review of the applicant’s service records show: a. Having had prior service in the USAR, the applicant enlisted in the Regular Army on 30 April 1996. He held military occupational specialty 92G (Food Service Specialist). He served in: * Korea from 13 December 1997 to 12 December 1998 * Bosnia from 11 March to 28 September 2000 * Korea from 7 June 2001 to 6 December 2002 b. He was promoted to sergeant/E-5 on 1 December 2002. c. On 22 November 2004, he accepted nonjudicial punishment for wrongfully using cocaine between 10 and 18 October 2004. His punishment consisted of a reduction to pay grade E-4, a suspended forfeiture of pay, and extra duty and restriction for 45 days. He elected not to appeal. He was reduced to E-4 on the same date. d. The applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), for misconduct- drug abuse. He advised the applicant of his rights. e. On 24 March 2005, after consulting with counsel, he acknowledged receipt of the proposed separation action and its effects, the rights available to him, and the effects of any action taken by him in waiving his rights. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him * he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge f. Following this acknowledgement, his immediate commander recommended separation action against him in accordance with AR 635-200, paragraph 14-12c. The intermediate commander recommended approval with the issuance of a general discharge. g. The separation authority approved his discharge and directed the issuance of a general discharge. h. He was discharged, in pay grade E-4, on 1 April 2005, under the provisions of AR 635-200, paragraph 14-12c. His service was characterized as under honorable conditions (general). His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 years, 3 months, and 3 days of active service, which included 3 years, 11 months, and 3 days of foreign service. This form also shows he was awarded/authorized: * Armed Forces Service Medal * Army Commendation Medal (2nd Award) * North Atlantic Treaty Organization Medal * Army Achievement Medal (9th Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal (2nd Award) * Armed Forces Expeditionary Medal * Army Service Ribbon * Overseas Service Ribbon * Global War on Terrorism Service Medal i. On 22 September 2006, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged and denied his request for a change in the character and/or reason of his discharge. The ADRB advised him of the following: * he could reapply to the ADRB for a personal appearance hearing and/or he could apply to the ABCMR and enclosed the necessary applications for requesting a review from both boards; if he choose to apply to the ABCMR he must do so within 3 years from the date of this letter * the ADRB operated on a 15-year statute of limitations from the date of discharge (1 April 2005); therefore, he must reapply within this time frame for a hearing j. On 4 December 2007, the ABCMR determined: * the evidence showed he had progressed through the ranks and had attained the rank of sergeant as a noncommissioned officer; he had an obligation to set a standard for his subordinates worthy of emulation * by having tested positive for the use of cocaine, an illegal drug, he violated the trust and confidence his chain of command may have had in him and destroyed the confidence and credibility a leader must have in order to lead successfully * in view of the circumstances in this case, he was not entitled to an upgrade of his general discharge to honorable * he had submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now sought k. An advisory opinion was received from the Special Medical Staff Officer, Army Review Boards Agency on 28 February 2020, in the processing of this case. The medical staff officer reiterated the applicant’s period of service and stated: (1) The record supported the applicant tested positive for cocaine during a random urine drug screen performed in his unit of assignment. He was appropriately counseled by his company commander as well as his battalion commander, and their intentions were made known to the applicant. Although, he alleged he was suffering from depression and PTSD as the cause for his use of cocaine, there was nothing in the record that indicated he had been diagnosed with either of those conditions while he was on active duty. He did not deploy to a combat area during his time on active duty. There was no other indication in his records, medical or administrative, that would support he had not been appropriately diagnosed with a behavioral health condition while serving on active duty. He did not receive any negative counseling or any other punitive action for misconduct or otherwise poor behavior prior to testing positive for cocaine that could indicate he was suffering from an undiagnosed behavioral health condition. Additionally, his request had previously been reviewed by the ADRB and the ABCMR who determined that the reason for his separation from the Army was proper and equitable. (2) The record supported that he was properly and equitably separated from the Army in accordance with AR 635-200, chapter 14, for misconduct/commission of a serious offense. There was no medical documentation from the Army or any other outside agency or civilian medical provider to indicate he had or has a diagnosis of depression or PTSD. Therefore, it was the opinion of the Agency’s medical advisor, based on the available information, that an upgrade in the applicant’s discharge from general to honorable was not indicated at this time. l. The applicant was provided with a copy of this advisory opinion for acknowledgement and/or rebuttal. He did not respond. 5. 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. 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 relief was not warranted. Based upon the misconduct involved, the findings and recommendation of the medical advisor, and the lack of any rebuttal submitted by the applicant of those findings and recommendation, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s characterization of service. 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. 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 (AR) 635-200 (Active Duty Enlisted Administrative Separations) in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation stated in: a. Chapter 14 – the policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impractical or unlikely to succeed. Army policy stated that an under other than honorable conditions discharge was normally considered appropriate for a Soldier discharged for misconduct. b. An honorable discharge – was a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001082 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1