ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170013967 APPLICANT REQUESTS: An upgrade of his general, under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate Of Release Of Discharge from Active Duty) * Department of Veterans Affairs summary of benefits (VA) 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 that he was processed out of the Army for a single use of marijuana after Operation Desert Storm, even though he had no prior issues or usage. He has a 70% connected disability rating from the VA for post-traumatic stress disorder (PTSD) due to Operation Desert storm. 3. A review of the applicant’s service records shows the following: a. He enlisted in the Regular Army on 30 January 1990. b. He served in Southwest Asia form 18 December 1990 to 28 April 1991. c. On 23 September 1991, he accepted nonjudicial punishment (NJP) under the provision of Article 15 for the wrongful use of marijuana. His punishment consisted, in part, reduction to private (PVT)/E-1. d. On 15 October 1991, the applicant's immediate commander notified the applicant that he intended to recommend him for elimination from military service under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel - Personnel a. Separations), chapter 14-12c (commissioned of a serious offense) based upon the wrongful use of hashish on or about 15 September 1991. The applicant acknowledged on the same date. e. On 17 October 1991, the applicant consulted with counsel. He was advised of the possible effects of a less than fully honorable discharge and the procedures and rights that were available to him. He further acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. f. The applicant's immediate commander recommended the applicant separation under the provisions of AR 635-200, chapter 14-12c, by reason of serious misconduct. g. On 29 October 1991, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 14-12c and directed the applicant be issued a general discharge certificate. h. The applicant was discharged from the Army on 8 November 1991. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with AR 635-200, paragraph 14-2 (c) by reason of misconduct (abuse of illegal drugs). His DD Form 214 confirms that his service was characterized as under honorable conditions (general). He served 1 year, 9 months, and 9 days of creditable active military service. It also shows that he was awarded or authorized the following: * Army Commendation medal * National Defense Service medal * Army Service Ribbon * Southwest Asia Service Metal W/2 bronze stars * Sharpshooter Marksmanship Badge Rifle ( M16) * Sharp shooter Marksmanship Badge Grenade 4. The Army Review Boards Agency clinical psychologist rendered a medical advisory opinion on 6 February 2019. The psychologist states based on a thorough review of available medical records, there is some evidence that the applicant’s deployment experiences are related to his misconduct leading to an early separation from service. His reported stressors from events during Operation Desert Storm and the overall stress and anxiety related to being in a deployed environment can be associated with use of substances for self-medication purposes. In summary, there is likely a relationship between his use of marijuana and his military experiences. 5. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal. He did not respond. 1. 5. By regulation, commanders are authorized to initiate separation action against Soldiers for various types of misconduct including those who commit a serious offense (drug use, assault, etc). 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 DOD 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 that relief was not warranted. Based upon the type of misconduct and the applicant already receiving general discharge, the Board concluded there was no error or injustice which would warrant changing the applicant’s characterization of service. 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. 5/21/2019 X CHAIRPERSON Signed by: 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 (Enlisted Personnel – Personnel Separations) governs the separation of enlisted personnel, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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 12c of that regulation provides that members are subject to separation for commission in 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 separation. 3. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria, and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 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. 1. 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.