ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 May 2019 DOCKET NUMBER: 20170018294 APPLICANT REQUESTS: upgrade of his general under honorable conditions discharge to 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) • DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 a "stop loss" had been put in place that prevented him from receiving an honorable discharge upon completion of his term of service. Due to mental and physical health concerns, he states it was considered the best course of action to not reenlist. 3. The applicant provided no additional documentation. 4. A review of his service record shows: a. He enlisted in the Regular Army on 4 February 1999. b. He held military occupational specialty 19K (M1 Armor Crewman) and he attained the rank/grade of sergeant (SGT)/E-5. He was assigned to B Company, 1st Battalion, 67th Armor Regiment, Fort Hood, TX, from 6 August 1999 to 10 September 2003. c. He accepted summarized nonjudicial punishment (NJP) on 29 August 2002 for failing to report to the appointed place of duty at the appointed time on 19 August 2002. d. He accepted NJP on 7 February 2003 for wrongfully using marijuana. His punishment included reduction to specialist (SPC)/E-4, forfeiture of pay, and extra duty and restriction. e. On 12 May 2003, the applicant's immediate commander notified him of his intent to initiate separation proceedings against him for misconduct because he tested positive for marijuana, advised him of his right to counsel, and provided him an opportunity to submit statements on his behalf. f. The applicant signed the acknowledgement of notification, was advised by consulting counsel, and waived personal appearance and consideration of his case by an administrative separation board. He did not provide a statement on his behalf. g. The applicant was informed of the requirement to complete a medical examination and mental evaluation. His record is void of documentation detailing the results of the medical examination and mental evaluation. h. On 13 May 2003, the applicant was recommended for separation by his company and brigade commanders. He was reported absent without leave (AWOL) on 14 May 2003 and was absent for 30 days until he was dropped from rolls on 13 June 2003. i. On 23 May 2003, the separation authority approved the applicant’s discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c due to misconduct (commission of a serious offense) and directed the applicant receive a general under honorable conditions characterization of service. j. The applicant was discharged on 10 September 2003. His DD Form 214 shows he was discharged in accordance with AR 635-200, paragraph 14-12c(2) for misconduct with a general under honorable conditions discharge characterization of service. He completed 4 years, 6 months, and 6 days of active service and had lost time from 14 May -13 June 2003. It also shows he was awarded or authorized: • Army Good Conduct Medal • National Defense Service Medal • Noncommissioned Officer's Professional Development Ribbon • Army Service Ribbon • Expert Marksmanship Qualification Badge with Grenade Bar • Marksman Marksmanship Qualification Badge with Rifle Bar 5. By regulation, AR 635-200, Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious offense, including abuse of illegal drugs, frequent incidents of discreditable nature with civil or military authorities. An under other than honorable conditions discharge was an appropriate and authorized characterization of service. 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 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 multiple UCMJ offenses, the Board concluded that the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. Microsoft Office Signature Line... 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 635-200, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides 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. c. Paragraph 14-12c(2), of the version in effect at the time, established policy and prescribed procedures for separating members for misconduct. For first-time drug offenders, the regulation provides Soldiers in the grade of sergeant and above, and all Soldiers with 3 years or more of total military service, Active and Reserve, will be processed for separation upon discovery of a drug offense. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the 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.