ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20170005634 APPLICANT REQUESTS: an upgrade of his discharge from under other than honorable conditions to honorable on his orders 13-354-00042, dated 20 December 2013. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 (ABCMR) 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 he was discharged from his unit for the first offense of a failed urinalysis for prescription medication that he did not know he had ingested. He was taking a physical training test so that he could receive orders as for a combat instructor course at Fort Douglas, UT in February of 2013. During the run, his knee shifted out of position and then back and he failed the run. He stayed at a friend’s house that night and took a few Tylenol to help with the pain because he was going to retake the physical training test the next day. His friend did not disclose to him that the pain pills he gave him were not Tylenol, instead they were pain pills that had be prescribed to him that he had put into the Tylenol bottle. He said that he did that so that visitors would not see a prescription bottle and attempt to steal them. The next day he reported to his command to find out that they forged a physical training test that showed he had passed so that he could go to training. He was given a random urinalysis and the results came back positive. He had never been in trouble before and his supervisors were willing to give recommendations to retain him in the military. He was later notified that he was being discharged due to failing the urinalysis even though it was his first offense and first negative military action. He believes that the discharge was too harsh being that it was his only and first offense of any kind and that many repeat offenders have received less severe punishment. He had taken multiple urinalysis before and never failed or tested positive for any substance. 3. A review of the applicant’s service record shows the following: a.. He enlisted in the U.S Army Reserve (USAR) on 28 September 2011. b. On 11 May 2012 , he was released from active duty with an honorable discharge for completion of required active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 6 months and 25 days of active duty service. c. Orders 13-354-00042, dated 20 December 2013, reduces the applicant to the rank of private/E-1. He was discharged from the USAR under the provisions of Army Regulation (AR) 135-178 (Enlisted Administrative Separations) effective 27 December 2013 with and under other than honorable conditions discharge. d. After an exhaustive search, no evidence exists that show why the applicant was discharged with an under other than honorable character of service. Nor were any records found that indicate that the applicant received any adverse punishment during the period of 28 September 2011 to 10 December 2013. 4. AR 135-178 (Enlisted Administrative Separations), establishes policies, standards, and procedures governing the administrative separation of certain enlisted Soldiers of the Army National Guard/Army National Guard of the United States and the U.S. Army Reserve. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 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 limited documentary evidence available for review, the Board concluded there was insufficient evidence to show an upgrade was warranted. The applicant did not provide any documentation in support of his request for an upgrade and based upon limited information in his service record, the Board concluded there was insufficient evidence of an error or injustice which would warrant making a change to the applicant’s record. 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. 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 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. 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. 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 3. AR 135-178 (Enlisted Administrative Separations) states that the policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. The separation policies throughout the different Chapters in this regulation promote the readiness of the Army by providing an orderly means to judge the suitability of persons to serve on the basis of their conduct and their ability to meet required standards of duty performance and discipline. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, and convictions by civil authorities. The characterization is based upon the quality of the Soldier's service, including the reason for separation and determined in accordance with standards of acceptable personal conduct and performance of duty as found in the UCMJ, Army Regulations, and the time-honored customs and traditions of the Army. The reasons for separation, including the specific circumstances that form the basis for the discharge are considered on the issue of characterization. Possible characterizations of service include an honorable, general, under honorable conditions, under other than honorable conditions, or uncharacterized, if the Soldier is in entry-level status. However, the permissible range of characterization varies based on the reason for separation. 4. 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 NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170005634 0 3 1