ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:   

	BOARD DATE:  9 December 2019

	DOCKET NUMBER:  AR20170007653


APPLICANT REQUESTS:  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).  

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 he was discharged due to three positive urine test.  The first 
sample occurred while he was on hold over states and he was able to reclassify and 
was sent to Fort Lee, Virginia and had no knowledge of the outcome of the test.  He 
was never disciplined under any kind of UCMJ action for his first infraction nor does 
he recall ever being offered proper counseling for any of the following infractions.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the U.S. Army on 27 December 1995.

	b.  On 15 March 2000, he received a general counseling statement for a positive 
urinalysis containing marijuana.

	c.  On 29 March 2000, he received an Article 15 for wrongful use of marijuana, 
which was detected by biochemical testing done by the military authorities.  His 
punishment included the reduction in rank to the enlisted grade of private/E-2, extra 
duty for 45 days and forfeiture of $563.00 per month for two months.

	d.  On 4 April 2000, he received another general counseling statement for a 
second positive urinalysis.
	e.  On 10 October 2000, he received a general counseling on the 
recommendation for separation for military service.  

	f.  On 5 December 2000, the applicant's immediate commander notified him that 
action was being initiated to separate him under the provisions of Army Regulation 
(AR) 635-200 (Personnel Separations), paragraph 14-12c for commission of a 
serious offense.  The reasons for the proposed action was that he tested positive for 
wrongful use of cocaine.  The immediate commander recommended that he receive 
a general discharge.  The immediate commander advised the applicant of his right 
to:
*	consult with counsel or retain civilian counsel at no expense to the 
government
*	obtain copies of the documents that would be sent to the separation 
authority supporting the proposed separation action
*	request a hearing before an administrative separation board
*	submit statements in his own behalf
*	waive any of these rights in writing
*	withdraw any waiver of rights at any time prior to the date the discharge 
authority directed or approved his discharge
*	submit a conditional waiver of his right to have his case heard before an 
administrative separation board
*	undergo a complete medical examination and mental status evaluation 
IAW AR 40-501 (Standards of Medical Fitness)

	g.  Subsequently, the applicant acknowledged receipt of the immediate 
commander’s decision to recommend him for separation.  He consulted with legal 
counsel on 15 December 2000, and he was advised of the basis for the 
contemplated action to separate him for commission of a serious offense.  He 
waived his rights contingent on receiving a characterization of service or description 
of separation no less favorable than honorable condition.  He acknowledged he 
could expect to encounter substantial prejudice in civilian life if a general discharge 
under honorable conditions was issued to him.  He also understands that if he 
receives a discharge which is less than honorable, he may apply to the Army 
Discharge Review Board and/or the ABCMR to upgrade his discharge; however, he 
realizes that consideration by either board does not imply that his characterization of 
service (discharge) would be upgraded.  He declined to submit any statements on 
his own behalf.

	h.  His immediate commander initiated separation action against the applicant 
under AR 635-200, paragraph 14-12c, commission of a serious offense.  The 
applicant's intermediate commander recommended approval and that he be issued 
an under honorable conditions (general) discharge.

	i.  On 27 December 2000, the intermediate commander recommended that under 
the provisions of AR 635-200, chapter 14, paragraph 14-12c, commission of a 
serious offense, the applicant be separated from the service with an under other 
than honorable conditions discharge, prior to his expiration of term of service.  The 
intermediate commander also recommended the applicant’s request for a conditional 
waiver for an honorable discharge be disapproved and that he not be transferred to 
the IRR.  

	j.  On 3 January 2001, the separation authority approved the request for 
discharge and directed the applicant receive a general under honorable conditions 
discharge.  In addition, he directed the applicant's reduction to E-1 in accordance 
with AR 600-8-19 (Enlisted Promotion and Reduction) and that he not be transferred 
to the IRR.

	k.  On 29 January 2001, the applicant was discharged from active duty.  His 
DD Form 214 shows he was discharged with a general, under honorable conditions 
characterization of service.  He completed 5 years, 1 month, and 3 days of active 
service.  This form also shows he was awarded or authorized:

*	Army Service Ribbon
*	Sharpshooter Marksmanship Badge with Rifle Bar

4.  Army Regulation 635-200, states chapter 14 provides policy and prescribes 
procedures for separating personnel for misconduct because of minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by 
civil authorities, desertion, and absence without leave.

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:

The Board carefully considered the applicants request, supporting documents, 
evidence in the records 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, the reason for his separation 
and whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors for the misconduct and the applicant provided no evidence of post-
service achievements or letters of support to weigh a clemency determination.  
Based on a preponderance of evidence, the Board determined that the character of 
service the applicant received upon separation was not in error or unjust.

After reviewing the application and all supporting documents, the Board found that 
relief was 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.


	  
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 635-200 sets forth the basic authority for the separation of 
enlisted personnel.

	a.  Chapter 14 of the regulation deals with separation for various types of 
misconduct, which includes drug abuse, and provides that individuals identified as 
drug abusers may be separated prior to their normal expiration of term of service. 
First time drug offenders in the grade of sergeant and above, and all Soldiers with 
three years or more of total military service, active and reserve, will be processed for 
separation upon discovery of a drug offense.  All Soldiers must be processed for 
separation after a second offense.

	b.  Paragraph 3-7a (Honorable Discharge) 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.

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, 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)	 AR20170007653

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