ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20170011841 APPLICANT REQUESTS: an upgrade of his general, under honorable conditions discharge to an honorable. 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 (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 believes the chain of custody was broken during the urinalysis. There was a group of soldiers that sat the table turning in urine samples when a soldier began to have seizures on the lanai. He was a combat medic and was told to go and assist the soldiers that was having the seizures, so he did while leaving his sample on the table. He assisted the soldier which took 5 to 10 minutes and then he returned to the table to submit what he thought was his specimen. He believes his specimen was swapped out with another soldier’s specimen. He brought up the facts. He would like to continue his education to receive his Bachelors of Business Management and would like to use the Montgomery GI Bill to do so. He has funded his college through grants and loans thus far; however, he believes he should have his case approved. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 6 July 1994. b. He served in Germany from 16 November 1994 to 2 November 1996. He also served in Hawaii from 20 April 1998 to 26 May 2000. c. The facts and circumstances surrounding his DD Form 458 (Charge Sheet) and DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) are not available for the Board’s review. d. On 10 April 2000, his immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 (Separation for Misconduct), paragraph 14-12(c) (Abuse of illegal drugs) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He recommended a general under conditions. e. On 17 April 2000, the applicant acknowledged receipt of the letter of notification and his election of rights and after consulting with legal counsel, he acknowledged: * the rights available to him and the effect of waiving said rights * statements on his own behalf, he elected not to submit one * consulting with counsel at no expense to the government * he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued to him * he may be ineligible for many or all benefits as a veteran under both Federal and State laws * his willful failure to appear before and administrative separation board by absenting himself without leave will constitute a waiver of his rights to appear before the board * he may apply to the ADRB or the ABCMR for upgrading * he is ineligible to apply for enlistment in the Army at any time after discharge IAW AR 601-280 (Army Retention Program) f. On 17 April 2000, consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of AR 635-200, Chapter 14 for a commission of a serious offense. He would be issued a General Under Honorable Conditions Discharge Certificate. g. He was discharged from active duty on 26 May 2000, under the provisions of AR 635-200, Chapter 14, paragraph 14-12c for commission of a serious offense with an under honorable conditions (General) character of service and the narrative reason for separation is misconduct. His DD Form 214 shows he completed 5 years, 10 month and 21 days of net active service. It also shows he was awarded or authorized the following: * Army Commendation Medal * Army Achievement Medal (3rd Award) * Army Good Conduct Medal * Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar * Air Assault Badge * Driver and Mechanic Badge with Driver Bar 4. On 5 October 2001, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge processing but found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 5. By regulation, Soldiers are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts- Martial. 6. The Board should 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 found relief was not warranted. Based upon the type of misconduct which led to the applicant’s separation, and the applicant’s current characterization of service, the Board concluded there was insufficient evidence of an error or injustice which would warrant a correction or clemency. 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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. Paragraph 12c states that commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the manual of courts martial. c. Paragraph 3-7a (Honorable Discharge) states that 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. d. Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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. ABCMR Record of Proceedings (cont) AR20170011841 4 1