ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 February 2020 DOCKET NUMBER: AR20180002781 APPLICANT REQUESTS: an upgrade of his [general discharge under honorable conditions] to honorable. 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) * DA Form 2-1 (Personnel Qualification Record – Part II) * SGLV Form 8286-E (Servicemembers' Group Life Insurance), dated 3 August 2000 * Enlisted Record Brief, dated 23 February 2001 * Orders 320-1008, Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, dated 16 November 2001 * Preseparation Counseling Checklist, dated 19 November 2001 * DD Form 214 (Certificate of Release or Discharge from Active Duty) REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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, set 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. Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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 (BCMRs) regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 his general discharge under honorable conditions (should read discharge under other than honorable conditions) for misconduct wasn't warranted based on his military record. His commanding officer prevented him from receiving a medical discharge. He enlisted twice and completed over 90 percent of his service obligation with no major infractions. His commanding officer told him he would intervene on his behalf because he didn't feel his discharge was warranted. The process took years. He was not discharged for over 2 years and earned his rank back. 3. On 19 August 1997, he enlisted in the Regular Army. 4. His records show he tested positive for tetrahydrocannabinol in a urinalysis conducted on 13 March 2001. 5. On 11 July 2001, he was counseled in writing by his first sergeant that drug abuse was incompatible with military service and would not be condoned in the command. He was referred to the Fort Drum Alcohol and Drug Abuse Prevention and Control Program. He was further counseled that: * the program would afford him with the opportunity to focus on the adverse effects and consequences of drug abuse * separation action might be initiated if his behavior continued * if separation action was initiated, he could receive an honorable, general, or other than honorable conditions discharge * if he was separated prior to the expiration of his term of service, he might forfeit his contributions to the GI Bill education program * he could expect to encounter substantial prejudice in civilian life if a general or other than honorable conditions discharge was issued * he might be ineligible for many or all benefits as a veteran if issued a general of under other than honorable conditions discharge * it was not likely that he would be successful in any attempt to have the character of his discharge changed 6. On 3 August 2001, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for: * wrongfully forging signatures to receive an Army Emergency Relief loan in the amount of $930.00 on or about 16 January 2001 * wrongfully using marijuana on or about 13 March 2001 7. On 17 September 2001, his battalion commander informed him of his proposed recommendation for separation under provisions of Army Regulation 635-200, paragraph 14-12c (Commission of a Serious Offense). His commander listed abuse of illegal drugs and forgery as the reasons for his action. The applicant acknowledged he understood: * the pending discharge proceedings were for commission of a serious offense * if approved, the separation authority could direct characterization of his service as honorable, general under honorable conditions, or under other than honorable conditions * he had the right to consult with counsel * he could submit written statements in his behalf * he had undergone a complete medical examination * he had undergone a complete mental status evaluation 8. On 17 September 2001, his battalion commander recommended his discharge under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c. 9. On 25 September 2001, he consulted with legal counsel and acknowledged he understood the rights available to him. He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization or description of service no less favorable than general under honorable conditions. 10. On 19 October 2001, the separation authority disapproved his conditional waiver and ordered his case to be heard before an administrative separation board. 11. On 30 October 2001, he consulted with legal counsel and: * waived consideration of his case by an administrative separation board * waived a personal appearance before an administrative separation board * declined to submit statements in his own behalf * acknowledged he had the opportunity to fully consult with counsel * acknowledged he understood he could expect to encounter substantial prejudice in civilian life if issued a discharge under other than honorable conditions and he might be ineligible for many or all benefits as a veteran under both Federal and State laws * acknowledged that if he received a discharge or characterization less than honorable, he could apply to the Army Discharge Review Board or the Army Board for Correction of Military records for upgrading, but that did not imply his discharge would be upgraded 12. On 6 November 2001, consistent with the chain of command recommendations, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c and directed his reduction to the lowest enlisted grade and discharge under other than honorable conditions. 13. On 21 November 2001, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, paragraph 14-12c. His DD Form 214 shows: * his rank/grade as private/E-1 * he completed 4 years, 3 months, and 3 days of net active service during this period * he was awarded or authorized the Army Good Conduct Medal and Army Service Ribbon * he completed his first full term of service * his narrative reason for separation as misconduct 13. His records are void of any evidence showing he was medically unfit or pending a medical discharge. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct and the reason for his separation. The Board found the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board majority found that the character of service was too harsh based on the nature of the misconduct and the applicant’s length of service; one Board member found insufficient mitigation for the applicant’s forgery offense. Based on a preponderance of evidence, the Board majority determined that the character of service the applicant received upon separation was unjust and a correction was necessary. 2. After reviewing the application and all supporting documents, the Board majority found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214 for the period of service ending 21 November 2001 to reflect in item 24 (Character of Service) – “Under Honorable Conditions (General)” vice “Under other than honorable conditions.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant’s character of service to 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002781 6 1