ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20180002534 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge characterization APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 that he would like for his character of service to be upgraded to general under honorable conditions. He was seeking treatment for drug abuse, but was repeatedly put on hold by the chain of command due to field exercises, training, change of command ceremonies, etc. In addition, he would like to recognize his error in judgement abusing using drugs, due to depression after his wife left with his 1 month old son. He also states that since being separated from the military, he has led a drug free and successful life, but always looks back in realization that he only had 15 days left to fulfill his 4 year term of active duty. He acknowledges that his actions were due to his decisions as a young and immature adult. 3. A view of the applicant’s record shows: a. He enlisted in the Regular Army on 6 July 1988. b. His service record contains five counseling statements on various offenses: * 16 November 2000, disrespectful to a noncommissioned officer * 29 November 2000, dereliction of duty by failing to obey a lawful order * 17 December 2000, missing movement * * 25 January 2001, wrongful use of a controlled substance * 28 November 2001 for missing formation c. He accepted non-judicial (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: * demonstrating a lack of military bearing by disrespecting a noncommissioned officer on 1 December 2000 and received 7 days extra duty as punishment * wrongfully using marijuana on 11 July 2001, and received a reduction to private (E-2), forfeiture of $521.00 pay per months for 2 months, extra duty for 45 days and 45 days restriction to brigade area, dining/medial facility and place of worship d. On 20 December 2001, the applicant's commanding officer notified him of her intent to initiate action to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, for misconduct (patterns of misconduct). Specifically for: * abuse of illegal drugs * disrespect to a noncommissioned officer * contempt of court e. The applicant acknowledged receipt and consulted with counsel. Following consultation with legal counsel, he understood his rights and acknowledged the following: * he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf f. The applicant’s commanding officer initiated action to separation him under the provisions of AR 635-200, chapter 14, patterns of misconduct and recommended the issuance of general discharge. His chain of command concurred with the commanders recommendations. g. Consistent with the chain of command's recommendation, the separation authority approved his discharge under the provisions of AR 635-200, chapter 14-12c, and directed the issuance of an under other than honorable conditions discharge, and reduced him to the lowest enlisted grade, private (E-1). a. h. His DD Form 214 shows he was discharged on 20 June 2002 under the provisions of AR 635-200, chapter 14-12c, and given a characterization of under other than honorable conditions discharge. It also shows he had 3 years, 11 months, and 15 days of active service with no lost time. He was awarded or authorized the Army Service Ribbon. 4. By regulation, (AR 635-200), action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history. 5. 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 found the relief was not warranted. Based upon the multiple UCMJ violations over an extended period of time, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 1535874 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 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided 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 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty. c. Paragraph 14 of this regulation This chapter establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a .pattern ,oft misconduct, commission-of a serious offense, conviction by civil authorities,' desertion, and absence without-leave. Action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history. d. Paragraph 14-12c , (Commission of a Serious Offense) says that Soldiers are subject to separation per this section for the 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 closely related offense under the manual for courts-martial. 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 1. 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.