IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20180000411 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 7 November 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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: a. He was divorced within the first 6 months of his active duty term. Consequently, he became depressed, started drinking a lot, and began to run around with a bad group of Soldiers who were using drugs. He moved into a house with one of the Soldiers and the house became a den for this behavior. All who attended parties at that house were drug tested. Some individuals were put into rehabilitation and others were discharged. b. He was a great Soldier, he just needed help for his depression. His drug test was barely positive for tetrahydrocannabinol (THC) or marijuana. He believes he should have talked with someone or asked for help. c. He has been sober since he got out of the Army and he has worked in healthcare for 15 years. He volunteers for many organizations including helping Soldiers and veterans. He is very proud of his service and he would be more proud and blessed to have an honorable discharge. 3. The applicant enlisted in the Regular Army on 3 August 1999. He completed training as a medical specialist. 4. The applicant was counseled on at least five separate occasions between 3 October 2001 and 29 January 2002, for offenses including but not limited to: * failure to report to physical training formation * being late for formation * failure to pay just debts * providing alcohol to persons under age 21 5. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation on 4 March 2002 and was psychiatrically cleared for any administrative or judicial action deemed appropriate by his command. 6. The applicant accepted nonjudicial punishment (NJP) on 20 March 2002, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana between on or about 14 January and on or about 13 February 2002. 7. The applicant was counseled on 20 March 2002 for receiving an Article 15. He was counseled on 2 April 2002, for failing a urinalysis test. He was informed that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense. He was also told that he needed to attend Army Career and Alumni Program (ACAP) counseling for separating Soldiers. 8. The applicant’s commander notified the applicant on 10 April 2002, of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense. The applicant’s commander cited the Article 15 he received for wrongful use of marijuana as the basis for his recommendation. The applicant acknowledged receipt of the notification. He declined the opportunity to consult with counsel and he elected not to submit a statement in his own behalf. 9. The applicant’s commander formally recommended his separation from service on 10 April 2002, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c for commission of a serious offense. The separation authority approved the recommendation for discharge on 29 April 2002. 10. The applicant was discharged on 7 May 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct – commission of a serious offense. His DD Form 214 confirms he completed 2 years, 9 months, and 5 days of net active service this period and his service was characterized as under honorable conditions (general). 11. The Army Discharge Review Board denied the applicant’s request for an upgrade of his general discharge to an honorable discharge on 14 April 2004. 12. Army Regulation 635-200 sets forth the policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. 13. The Board should consider the applicant’s provided statement 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 warranted. The applicant’s contentions were carefully considered. He was separated after failing a drug test for using marijuana. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed there was no other record of misconduct in his record, and that his discharge should be upgraded BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 7 May 2002 showing his character of service as honorable. 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs. This regulation states, in pertinent part, that first- time and second time drug offenders in grades E-5 to E-9 would be processed for separation upon discovery of a drug offense. For first-time offenders in pay grades E-1 to E-4, the separation authority will decide whether to separate based on recommendations from the immediate and intermediate commanders. The regulation also states, in pertinent part, that abuse of illegal drugs is serious misconduct and separation action normally will be based upon commission of a serious offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member’s overall record. 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 regardless of the court-martial forum. However, the guidance applies to more than 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 governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. 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) AR20180000411 4 ABCMR Record of Proceedings (cont) AR20180000411 1