BOARD DATE: 16 January 2020 DOCKET NUMBER: AR20180010833 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. 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), dated 22 August 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 25 March 2002 * Community Personal Care, Inc. Aide Training Certificate of Completion, dated 23 September 2009 * Copies of Ordained Ministry Cards (unreadable) 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, in effect, that while in basic training, he found out his sons had been put in foster care. After basic training, he went to Virginia to find out what happened. He found that one of his sons had been molested while in his mother and her boyfriend’s care. He reported back to duty and informed his noncommissioned officers, who told him to wait six months. After six months passed, he asked again and was told to wait another six months. He was stressed and worried, so he began to self- medicate with marijuana. His urine test came back positive and there was zero tolerance for drug use, so he was sent home. 3. The applicant completed a Standard Form 86 (Security Clearance Application) on 30 April 2001, as part of his enlistment application. He answered "No" for item 27 (Your use of Illegal Drugs and Drug Activity-Illegal Use of Drugs). 4. The applicant enlisted in the Regular Army on 25 May 2001. 5. The applicant’s service record contains the following: a. A Memorandum recording his positive urinalysis results, and a DD Form 2624 (Specimen Custody Document – Drug Testing), showing he submitted a urine sample as part of a 100% unit urinalysis inspection on 17 January 2002. The sample he submitted tested positive for marijuana/THC, as documented in positive drug testing results dated 1 February 2002. b. A DA Form 4856 (Developmental Counseling Form), showing he was counseled on 8 February 2002 for being recommended for a Field Grade Article 15, and possibly a Chapter 14 separation, for his positive urinalysis results. 6. The applicant underwent a separation physical on 22 February 2002. The relevant Standard Form (SF) 93 (Report of Medical History) shows his health was fair except for a large painful lipoma on his back. The applicant also stated in an attached SF 600 (Chronological Record of Medical Care) that he had smoked marijuana for 16 years (contrary to what he detailed in the SF 86 he completed for entry). The provider completed the examination on 11 March 2002 and qualified him for separation. The form also shows his lipoma was removed. 7. The applicant accepted non-judicial punishment (NJP) on 27 February 2002, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for his wrongfully use of a controlled substance, marijuana, between on or about 17 December 2001 and 17 January 2002. 8. The applicant underwent a mental status evaluations on 17 March 2002. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he received the mental status evaluation because he was being considered for Chapter 14 separation. It also shows he had the mental capacity to understand and participate in board proceedings; was mentally responsible; and met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. The report further shows in "Remarks" IAW DSM: AXIS I: Occuppational Problem AXIS II: Deferred AXIS III: None AXIS IV: Problems with Occupation There is no psychiatric disorder or defect that requires disposition through medical channels. This service member is mentally responsible for his behavior, can distinguish right from wrong, and possess sufficient mental capacity to participate in administrative proceedings. Service Member is cleared for any administrative or judicial actions deemed appropriate by the command. 9. The applicant's immediate commander notified the applicant on 2 May 2002 of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of his commission of a serious offense. Specifically, he cited him receiving a Field Grade Article 15 for wrongfully using marijuana (THC). He recommended the applicant receive a general discharge. The applicant acknowledged receipt of the commander's notification memorandum the same day. 10. The applicant consulted with counsel on 14 May 2002. He waived his rights to an administrative separation board and a personal appearance board, contingent upon not receiving less than a General discharge [he was not entitled to have his case heard by a separation board]. He acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further acknowledged his understanding that as the result of the issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may expect to encounter substantial prejudice in civilian life. He elected not to submit statements in his own behalf. 11. The applicant's commander formally recommended his separation on 21 May 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his misconduct – commission of a serious offense. Specifically, he listed the aforementioned reasons for his request. The applicant's chain of command subsequently recommended approval of his discharge the same day. 12. The separation authority approved the applicant's separation on 23 May 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c and prior to his expiration of current term of service, by reason of misconduct – commission of a serious offense. The separation authority directed that the applicant be issued a general, under honorable conditions discharge. He further waived the rehabilitative requirements and directed that the applicant not be retained in the Individual Ready Reserve (IRR). 13. The applicant was discharged on 31 May 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. His DD Form 214 shows he was credited with completing one year and six days of net active service and his service was characterized as under honorable conditions (general). 14. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his general, under honorable conditions discharge. After careful consideration, the ADRB denied his request on 28 April 2017. 15. The applicant provides the following documentation, for consideration in his case: * a certified copy of his DD Form 214 * a Certificate of Completion for the Community Personal Care, Inc. training * two unreadable Ordained Ministry Cards * two names of Social Service Workers, whom he contends are witnesses for him and his son 16. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. 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 of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence in addition to his statement. The Board considered the post-service documents the applicant provided, but found them insufficient to support clemency. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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 provides that 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. Paragraph 3-7b states 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’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) AR20180010833 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180010833 6 ABCMR Record of Proceedings (cont) AR20180010833 5