IN THE CASE OF: BOARD DATE: 30 September 2019 DOCKET NUMBER: AR20180016415 APPLICANT REQUESTS: his under honorable conditions (general) discharge be upgraded to an honorable discharge. 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), dated 18 November 2018 * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 18 November 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 April 2009 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 his chain of command sabotaged him, gave him no help, and was only concerned with putting him out. If he had proper counsel, and his chain of command cared enough to help him, he would still be on active duty. Instead, they railroaded him, twice. He cannot get a decent job because of his discharge type. 3. The applicant enlisted in the Louisiana Army National Guard (LAARNG) on 17 December 2004. 4. The applicant's record contains a DD Form 2808 (Report of Medical Examination), which shows that during his ARNG enlistment physical on 17 December 2004, he was initially found qualified for service but after testing positive for drugs, he was subsequently disqualified. 5. Orders Number 007-038, issued by the LAARNG on 7 January 2005, discharged the applicant from the ARNG and the Reserve of the Army, effective 28 December 2004. The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued show he was discharged for failing to meet medical procurement standards, under Army Regulation 40-501 (Standards of Medical Fitness) and his service was uncharacterized. 6. The applicant enlisted in the Regular Army on 23 August 2007. 7. The applicant accepted nonjudicial punishment (NJP) on 23 October 2008, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using a controlled substance [marijuana] between on or about 28 August and on or about 26 September 2008. His sentence included his reduction in rank/grade to private (PVT)/E-1. 8. The applicant underwent a separation physical on 11 November 2008. The relevant DD Form 2807-1 (Report of Medical History) and DD Form 2808 show he had no medical issues and he was qualified for separation. 9. The applicant again accepted NJP on 2 December 2008, under the provisions of Article 15 of the UCMJ, for wrongfully using a controlled substance [marijuana] between on or about 30 September and on or about 30 October 2008. 10. The applicant underwent a mental status evaluation on 4 December 2008. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in board proceedings, was mentally responsible, met medical retention requirements of Army Regulation 40-501, Chapter 3, and contained the following remarks: Evaluation consisting of clinical interview indicates the above named individual carries the following diagnoses IAW DSM IV: Axis I: Adjustment Disorder with Depressed Mood Axis II: No Diagnosis Axis III: NONE REMARKS: [Continued on second page] PVT R_ was evaluated today for an emergency Command Directed Mental Health Evaluation (CDMHE). Command reported that this SM's father contacted command last night and advised that SM was experiencing "severe depression and suicidal ideation". Upon evaluation, this SM strongly denies any thoughts of hurting or killing himself. Further, he denied any plan, intent or past history of attempts to hurt himself. Lastly, this SM denied plan or intent to harm or kill anyone else. This SM reported that he feels depressed and hopeless regarding his current life stressors. He reported financial and work concerns, as well as stress related to planning for parenthood. He reported that he recently received an ART 15 for a positive UA (THC), and that the resulting reduction in rank and fine have led to financial problems. He acknowledges responsibility for his actions, and recognizes the need to complete the extra duty and restrictions as assigned, but feels overwhelmed by sadness and stress. He is concerned about the impact of a pending second ART 15. SM is requesting assistance with anger management, as SM stated that he feels like he is about to "snap," which he clarified to mean lose his temper and yell at or hit someone whom he felt was provoking him. He denied any specific target or actual intent. Regarding concern reported by father, SM stated that he talks to his father frequently, and told his father last night that he was sad and frustrated and overwhelmed. SM stated he told his father that he was afraid he would do something to get himself hurt, which he is clarifying today to mean get into trouble. Again, SM strongly denies intent to hurt himself or anyone else. SM is requesting assistance in learning appropriate ways to handle anger as well as help with depressive symptoms. SM was scheduled for Anger Management class at his request, starting on 10 DEC at 0930 hours and was also scheduled for individual treatment at his request on 12 JAN at 0800 hours. (PVT R_ was aware that the next available appointment with a psychologist was more than 28 days away, and has agreed to the appointment time.) Recommend that command allow SM to attend these appointments at Commander's discretion. SM was also referred to unit Chaplain and Military One Source as resources for support. 11. The applicant’s service records contain several DA Forms 4856 (Developmental Counseling Form) that show he was counseled on at least five occasions, for infractions including but not limited to: failure to report; failure to be at his appointed place of duty; driving while impaired; displaying disrespect towards a noncommissioned officer; making provoking speeches and gestures; communicating a threat; and separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, commission of a serious offense. 12. The applicant's commander notified the applicant on 23 March 2009 that actions had been initiated to separate him from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his commission of a serious offense – abuse of illegal drugs. The applicant acknowledged receipt of the notification on the same day. 13. The applicant declined the opportunity to consult with counsel on 23 March 2009. He unconditionally waived all of his rights and elected not to submit statements in his own behalf. He acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that as the result of 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 that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge/ character of service that was less than honorable, he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, that an act of consideration by either board does not imply his discharge will be upgraded. 14. The applicant's commander formally recommended the applicant's separation on 23 March 2009, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his Commission of a Serious Offense, Misconduct – Abuse of Illegal Drugs. Specifically he listed his reason as the applicant's two positive marijuana tests. 15. The applicant’s intermediate commander recommended approval of his separation on 6 April 2009, under the provisions of Army Regulation 635-200, paragraph 14-12c. 16. Consistent with the chain of commands' recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, Commission of a Serious Offense, Misconduct – Abuse of Illegal Drugs, and directed that he receive a DD Form 257A (General Discharge Certificate). 17. The applicant was discharged on 30 April 2009, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – abuse of illegal drugs. His service was characterized as under honorable conditions (general). 18. The applicant petitioned the ADRB for an upgrade of his discharge. The ADRB considered his petition and denied his request on 27 January 2017. 19. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and did not find any evidence of error, injustice, or inequity. The Board agreed that the characterization of the applicant’s service is appropriate based on the misconduct that led to his separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING TC: MM: JT: 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 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) AR20180016415 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016415 6 ABCMR Record of Proceedings (cont) AR20180016415 5