ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20170011198 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to honorable conditions. 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) 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 he thinks he understands better yet he knows what he did in the U.S. Army was wrong. He now has a family that depends on him. So one day his son asked him why he got out so he had to be honest with him. He told his son he did drugs when he was younger, and had a bad attitude. He does not want to see his son make the same mistake he did. He is now in church and plays the drums and his occupation is a subcontractor. He has gotten his friends and family to join the military. His nephew is in the U.S. Army and his best friend’s daughter is in the U.S. Air Force. He really needs this upgrade for him and his family but most of all he does not want it on his record. The Army was a great experience. He got to see places. From here on out even if he does not get upgraded he will try to be the U.S. Army’s biggest recruiter. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 3 January 2000. b. He accepted non-judicial punishment on/for: * 4 December 2000, failure to obey a lawful general order or regulation by consuming alcohol while under the legal age * 22 August 2001, wrongful use of marijuana, a controlled substance, and unlawfully hit PV2 Gi_, on the head with a fan, he was reduced to private/E-1 * 29 May 2002, without authority, fail to go at the time prescribed to your appointed place of duty, failure to obey a lawfully order to lay out TA-50 for inspection at 0530 hours on 8 April 2002, and failure to obey a lawfully order to lay out TA-50 for inspection at 1700 hours on 8 April 2002, he was reduced to private/E-1 * 9 August 2002, wrongfully use marijuana, a controlled substance c. On 4 December 2002, the applicant’s unit commander, notified the applicant that under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations- Enlisted Personnel) chapter 14 (Separation for Misconduct), he was being initiated for separation from the service for misconduct (abuse of illegal drugs), and advised him of his rights. d. On 12 December 2002, he consulted with counsel and acknowledged the following: * been advised of the basis for the contemplated action to separate him for misconduct (abuse of illegal drugs) under the provisions of AR 635-200, chapter 14-12c (commission of a serious offense), and its effect; of the rights available to him; and the effect of any action taken by him in waiving his rights * statement on his behalf was submitted * understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him * understood that if he received a discharge certificate/character of service which is less than honorable, he may apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading e. On 12 and 13 December 2002, his chain of command concurred with the recommended action and that he receive a general discharge. f. On 18 December 2002, the separation authority approved the separation action with the issuance of a general discharge UP of AR 635-200 chapter 14-12c. g. On 2 January 2003, he was discharged under honorable conditions for misconduct (abuse of illegal drugs) UP of AR 635-200 paragraph 14-12c. He completed 2 years, 11 months, and 27 days of active service. He was awarded the Army Achievement Medal (3rd Award, erroneously shown as 43rd), National Defense Service Medal, Army Service Ribbon, and Sharpshooter Qualification Badge (Rifle Bar). He had 2 days of lost time from 21 July 2002 until 22 July 2002. 4. On 4 March 2009, he was notified by Army Discharge Review Board determined that he was properly and equitably discharged. His request for a change in the character and/or reason of his discharge was denied. 5. By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of service completed prior to a pattern of misconduct, some of which included violence towards other Soldiers, the Board agreed that the applicant's discharge characterization was 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 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 (Separation for Misconduct) deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. a. Paragraph 3-7a states that 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(1) 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. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011198 6 1