BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20180013772 APPLICANT REQUESTS: The applicant requests an upgrade of her general, under honorable conditions discharge. 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) * Self-written statement 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: a. She is writing this letter to respectfully request upgrading his discharge from General to Honorable. In 2002 she entered the military as a young 19 year old. She executed and overcame basic training. When she reached her duty station at Fort Lee, Virginia, she had just turned 20 years old. She was still young. b. Her tour at Fort Lee was short and she made some very poor decisions. She admits to her use of illegal drugs and the lack of responsibility on her behalf. During her time at Fort Lee she feels as though the signs of her troubles may have been overlooked by her command. She found ways out of physical training and many times would not come back after lunch because she partied rather than return to her job. c. She was never reprimanded or even checked up on during her absences. She does feel that her actions were a sign that her leadership did not act on or give any counseling that might have addressed her immature behavior. She also realizes that she did not recognize her own faults and she failed to improve as a Soldier. Now 15 years later, she is a wife and mother of 4. She now has many responsibilities that require her to be focused and sober, which she has been for 5 years now. She is currently employed by the Sam Rayburn Memorial Veteran Center. She has most recently received an outstanding rating from her supervisor and have only been with the Department of Veterans Affairs for a little over a month. d. Her goal in life is to provide her children with options such as schools, sports and vacations. Not having her discharge as fully honorable, she does have as many doors open to help her in her career and allowing her to give her children the experience of how great our military system is to its Veterans. She tells her kids all the time that the military was the best decision she ever made. She looks forward to a fair and objective review of her request for an upgrade, with consideration given to the contrast of her previous maturity level as compared to who she is now. 3. On 29 May 2002, the applicant enlisted in the Regular Army for a period of 3 years. 4. In January 2003, drug testing shows the applicant tested positive for marijuana, and before being discharged from the Army she tested positive again for marijuana and cocaine. 5. A review of the applicant’s record shows: a. She was counseled for testing positive twice for marijuana. Separation action from the Army was recommended and she was referred to the Army Substance Abuse Program. b. She was medically cleared for administrative separation and a mental status evaluation psychiatrically cleared her for any administrative action deemed appropriate by her chain of command. 6. On 21 February 2003, she was notified of her commander’s intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), paragraph 14-12c (commission of a serious offense). The reason for her commander’s proposed action was the applicant’s consistent substandard performance. a. The applicant’s commander advised her of her available rights, to include her right to consult with counsel. b. The applicant acknowledged receipt of the separation notification memorandum. She was advised by her counsel of the basis for the contemplated action to separate her for disrespect, overall lack of motivation, and commission of a serious offense. c. She elected to submit statements in her own behalf and stated in part, she had failed her chain of command and fellow Soldiers. She wished that she would have been given a chance to stay in Kuwait and performed her duties over there. By coming back to Fort Lee she had again used marijuana and her drug test had also come back positive for cocaine. She knows that she is not ready for the military. d. The applicant's chain of command recommended approval of the administrative separation action and the separation authority approved the separation with a general, under honorable conditions character of service. 7. On 29 April 2003, the applicant was discharged accordingly for misconduct. She completed 11 months and 1 day of net active service. She was not awarded a personal decoration. 8. On 18 July 2011, the Army Discharge Review Board determined that the applicant was properly and equitably discharged. Her request for a change in the character and/or reason of her discharge was denied. 9. Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 10. In reaching its determination, the Board should consider the applicant's petition, her service record, and her statement in light of the published Department of Defense guidance on equity, injustice, or clemency. 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, her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. The Board found no in-service mitigating factors and the applicant provided no evidence of post-service achievements in addition to her statement and no letters of reference in support of a clemency determination. The Board determined, based on a preponderance of evidence, that the character of service the applicant received at 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 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 Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 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. a. 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. b. 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, 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. ABCMR Record of Proceedings (cont) AR20180013772 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013772 3 ABCMR Record of Proceedings (cont) AR20180013772 4