ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	BOARD DATE:  19 November 2019

	DOCKET NUMBER:  AR20170008965


APPLICANT REQUESTS:  in effect, an upgrade of his general, under honorable 
conditions discharge to honorable and modification of the narrative reason for 
separation, separation code, and reentry code.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Prescription for Hydrocodone
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) - 
Worksheet
*	DD Form 214 (Member 1 and Member 4 Copies)

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 failed a urinalysis (UA) for a similar prescription he was 
prescribed and he was never enrolled in the Army Substance Abuse Program 
(ASAP).  The lady in charge of the DD Form 214 altered the DD Form 214 given to 
him by battalion upon his departure from the Army.  It is his dream to reenlist to 
serve his country.  He was an expert infantryman that passed every physical fitness 
test and knew all the battle drills.  He would like to do the right thing for his country.  
He is requesting an honorable characterization of service, the words “drug abuse” be 
removed from the narrative reason, a change in separation code and his reentry 
code be changed to 4.

3.  The applicant provides:

   a.  A prescription for Hydrocodone/APAP (NORCO), dated 1 September 2015, a 
five day supply.
   
   b.  A DD Form 214 worksheet with a note that states “service member (SM) 
review) at the top with no signatures or dates.
   
   c.  Member 1 and Member 4 copies of his final DD Form 214, dated 26 February 
2016, also noted as the date of his separation.  The applicant digitally signed the 
document on the same day.

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

a.	He enlisted in the Regular Army on 15 September 2014.

   b.  On 17 September 2015, the applicant tested positive for Oxymorphone.  The 
ASAP Manager notified the command on 18 September 2015 and advised the 
command to initiate a Medical Review Officer (MRO) Evaluation to determine if the 
drug positive resulted from authorized medical use or illegal use.
   
   c.  An MRO memorandum, dated 30 September 2015, indicated the applicant 
tested positive for Oxymorphone on 9 September 2015 and a review of his medical 
records, in addition to an in person interview, revealed that he did not have a 
prescription that would account for the positive urinalysis.  He did not have 
authorized/legitimate use for the listed substance.

	d.  On 8 December 2015, he received nonjudicial punishment for one 
specification of wrongful use of Oxymorphone; his punishment included reduction to 
private/E-1 and forfeiture of $773.00 pay for two months.  The applicant did not 
appeal or submit matters on his own behalf.

   e.  On 19 February 2016, the applicant’s immediate commander notified the 
applicant of his intent to separate him under the provisions of Chapter 14, Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for 
commission of a serious offense.  The specific reasons for his proposed 
recommendation was between on or about 6 September 2015 and on or about 9 
September 2015 he wrongfully used Oxymorphone.  He acknowledged receipt on 
the same day.
   
   f.  On 22 February 2016, after consulting with legal counsel, he acknowledged: 

*	the rights available to him and the effect of waiving said rights
*	he may encounter substantial prejudice in civilian life if an under other 
than honorable conditions discharge is issued to him
*	he may apply to the ADRB or the ABCMR for upgrading
*	he elected to not submit a statement on his own behalf

   g.  On 22 February 2016, the immediate commander initiated separation action 
against the applicant for commission of a serious offense.  The intermediate 
commander recommended his period of service be characterized as general, under 
honorable conditions.
   
   h.  On 23 February 2016, consistent with the chain of command 
recommendations, the separation authority approved the discharge recommendation 
for immediate separation, under the provisions of Chapter 14, AR 635-200, 
paragraph 14-12c for commission of a serious offense.  He would be issued a 
General Discharge Certificate.
   
   i.  On 26 February 2016, he was discharged from active duty with a general, 
under honorable conditions characterization of service.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 5 
months, and 12 days of active service with no lost time.  It also shows he was 
awarded or authorized:

*	National Defense Service Medal
*	Global War on Terrorism Service Medal
*	Army Service Ribbon

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.  By regulation (AR 635-200), action will be taken to separate a Soldier for 
misconduct when it is clearly established that despite attempts to rehabilitate or 
develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.

7.  By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most 
recent period of continuous active duty.  It provides a brief, clear-cut record of all 
current active, prior active, and prior inactive duty service at the time of release from 
active duty, retirement, or discharge.  The information entered thereon reflects the 
conditions as they existed at the time of separation.

8.  In reaching its determination, the Board can consider the applicants 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 short term of honorable 
service completed prior to the misconduct which led to the applicant’s separation, as 
well as the command providing the applicant with a General discharge at the time of 
separation, the Board concluded clemency was previously awarded at the time by 
the command.  Therefore, the Board concluded that there was no further relief 
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 (Personnel Separations – Enlisted Personnel), in effect 
at the time, sets forth the basic authority for the separation of enlisted personnel.

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

   c.  Chapter 14 of the regulation states action will be taken to separate a Soldier 
for misconduct when it is clearly established that despite attempts to rehabilitate or 
develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. 

3.  Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a 
summary of the Soldier's most recent period of continuous active duty.  It provides a 
brief, clear-cut record of all current active, prior active, and prior inactive duty service 
at the time of release from active duty, retirement, or discharge.  The information 
entered thereon reflects the conditions as they existed at the time of 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 
characterization.

NOTHING FOLLOWS

ABCMR Record of Proceedings (cont)	 AR20170008965

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