ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 September 2019

	DOCKET NUMBER:  AR20180013844


APPLICANT REQUESTS:  

*	upgrade of his under honorable conditions (general) discharge 
*	change of his narrative reason for separation to show "mental health reasons"

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

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

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 he was discharged for the wrong reasons.  He believes his 
narrative reason for separation should have been for mental health reasons.  

3.  The applicant enlisted in the Regular Army on 8 April 1999.

4.  On 15 April 2000, the applicant received nonjudicial punishment under the provisions 
of Article 15, Uniform Code of Military Justice, for disobeying a lawful order issued by 
his commanding officer and for wrongful possession and use of marijuana.

5.  On 13 June 2000, the applicant was counseled for wrongful use of marijuana 
(second offense).

6.  On 5 July 2000, the applicant was counseled for the following acts of misconduct:

*	possession of marijuana and alcohol in the barracks 
*	positive urinalysis for cocaine and marijuana
*	driving under the influence (DUI) and underage drinking 
*	failure to drive on roadway
*	driving without insurance
*	operating a vehicle without license plates 

7.  On 11 July 2000, the applicant received a general officer memorandum of reprimand 
for DUI and underage drinking.

8.  On 7 August 2000, the applicant's immediate commander informed him that he was 
initiating action to separate him from the Army under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for 
commission of a serious offense, with a general under honorable conditions 
characterization of service.  The commander stated the reasons for the proposed 
separation action were that on two occasions, the applicant tested positive for illegal 
drugs.  Further, the applicant was also cited for DUI and tested positive for cocaine and 
marijuana for the third time.  The applicant was also advised of his right to consult with 
legal counsel.

9.  On 11 September 2000, the applicant consulted with legal counsel and he was 
advised of the basis for the contemplated separation action for commission of a serious 
offense.  He acknowledged he understood he may expect to encounter substantial 
prejudice in civilian life if a general, under honorable conditions discharge was issued to 
her.  He also acknowledged he understood that if he received a character of service of 
less than honorable, he may apply to the Army Discharge Review Board or this Board 
for an upgrade of his discharge; however, he realized that an act of consideration by 
either board did not imply his discharge would be upgraded.

10.  An official from the Office of the Staff Judge Advocate reviewed the separation 
packet pertaining to the applicant and found it legally sufficient to support a separation 
under the provisions of Army Regulation 635-200, paragraph 14-12c, for the 
commission of a serious offense.  

11.  On 11 September 2000, the separation authority approved the applicant's 
separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, 
with his service characterized as general under honorable conditions.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) 
confirms he was discharged on 29 September 2000 under the provisions of Army 
Regulation 635-200, paragraph 14-12c, by reason of misconduct, with an under 
honorable conditions (general) characterization of service.

13.  On 2 August 2019, the Army Review Boards Agency clinical psychologist/medical 
advisor provided an advisory opinion.  The advisory found that Based on a thorough 
review of available medical records, there is insufficient evidence to determine if a 
behavioral health condition contributed to the misconduct that led to the applicant’s 
separation.  A copy of the complete medical advisory was provided to the Board for their 
review and consideration.
14.  The applicant was provided a copy of the advisory opinion on 12 August 2019 and 
given an opportunity to submit comments.  He did not respond.

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.  The 
Board considered the review and conclusions of the medical advising official finding 
insufficient evidence of a behavioral health condition that contributed to the miscondcut.  
The Board concurs with the advising official and found insufficient evidence of in-service 
mitigating factors to overcome the multiple drug offences and other serious misconduct.  
The Board found that the applicant provided no evidence of post-service achievements 
or letters of reference in support of a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service and 
reason for the applicant’s 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

:XXX	:XXX	:XXX	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.  Chapter 14 deals with separation for various types of misconduct, which includes 
drug abuse, and states that individuals identified as drug abusers may be separated prior 
to their normal expiration of term of service. The regulation in effect at the time stated 
individuals in pay grades E-5 and above could be processed for separation upon discovery 
of a drug offense.  Those in pay grades below E-5 could also be processed after a first 
drug offense and must have been processed for separation after a second offense.  The 
issuance of a discharge under other than honorable conditions was normally considered 
appropriate.

	b.  Paragraph 3-7a states 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.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Service Discharge Review Boards and Service 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 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)	 AR20180013844

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