ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20180008469


APPLICANT REQUESTS:  an upgrade of his general discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Certificate of Achievement

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 (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 the discharge decision was made in 2002 due to positive drug tests.  He never received drug dependency counseling 302 (family member grievance counseling).  His father passing away during his basic training resulted in his continuous drug use.  He has since completed a drug counseling course.  If his discharge is upgraded to honorable he would be able to attend welding classes to obtain a better job that pays taxes and obtain medical aid for his heart condition.

3.  The applicant provides a Certificate of Achievement, dated 14 December 2012, showing his successful completion of the Cognitive Intervention Program.

4.  Review of the applicant’s service records shows: 

	a.  He enlisted in the Regular Army on 22 September 2000.  

	b.  On 3 August 2001, he accepted nonjudicial punishment (NJP) for wrongfully using cocaine between 27 May and 26 June 2001.  His punishment included a reduction to pay grade E-1.

	c.  On 20 August 2001, he received counseling regarding his extra duty as a result of his 3 August 2001 NJP.

	d.  An appointment slip for the Alcohol and Drug Abuse Prevention and Control Program, dated 21 August 2001, shows he was scheduled for a mandatory evaluation appointment to abstain from the use of alcohol and/or other drugs and to attend Narcotics Anonymous meetings.

	e.  On 21 August 2001, he received counseling for failing to report on time for formation.

	f.  On 9 October 2002, he accepted NJP for failing to go to his appointed place of duty on two occasions.

	g.  On or about 30 December 2002, the applicant's immediate commander notified the applicant of his intent to initiate separation action against the applicant for misconduct in accordance with paragraph 14-12b of Army Regulation (AR) 635-200 (Enlisted Separations – Enlisted Personnel), due to misconduct.  The commander stated the reasons for the initiation was the applicant testing positive during a company urinalysis and failing to be at his appointed place of duty.  He recommended an under honorable conditions (general) discharge and advised the applicant of his rights.

	h.  On 30 December 2002, he consulted with counsel and was advised of the basis for the contemplated separation action.  He affirmed understanding he could encounter substantial prejudice in civilian life should be receive a general discharge under honorable conditions.  The applicant:

* was further informed of the effects of this separation and his available rights
* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could apply to the Army Discharge Review Board or the ABCMR requesting an upgrade of his discharge
* understood he was ineligible to apply for enlistment in the Army for a period of 2 years after discharge
* elected to submit a statement in his own behalf

	i.  In his statement, the applicant stated that he was offered a general discharge.  He was writing to request a probationary period to stay in the Army and possibly reenlist to serve his country more directly in the war on terrorism.  When he first arrived at Fort Hood, TX, he was experiencing some personal problems.  With the help of his chaplain, he was resolving his personal problems.  He knows that he had not been a model Soldier and he had been rehabilitated for 7 months.  In his father there was a history of war veterans.  His grandfather served during World War II and his father served during the Vietnam War.  He would like to serve this country in the same honorable gesture as they had done.  If he was separated, he would go on his way and reenlist as soon as he was eligible.  

	j.  On or about 30 December 2002, the applicant’s immediate commander recommended the applicant’s separation in accordance with AR 635-200, chapter 14.

	k.  In February 2002, several member of the applicant’s company and the chaplain recommended the applicant’s retention in the Army.

	l.  On 28 February 2002, the separation authority approved the applicant's discharge and directed the issuance of a general discharge.  He was discharged on 15 May 2002.

	m.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, for Misconduct.  He completed 1 year, 7 months, and 25 days of active service and his service was characterized as under honorable conditions.  This form also shows he was awarded/authorized the National Defense Service Medal and Army Service Ribbon.

	n.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 

5.  By regulation (AR 635-200), misconduct includes minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  An under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct.

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 review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  He was discharged after a pattern of misconduct and was provided an Under Honorable Conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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.
	 
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 (Enlisted Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The regulation also stated in:

	a.  Paragraph 3-7a – an honorable discharge was a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b – a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

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 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180008469


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