ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 24 October 2019 DOCKET NUMBER: AR20190003030 APPLICANT REQUESTS: The applicant requests: * an upgrade of his general under honorable conditions discharge to an honorable discharge * to lift his bar from the military installation 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) for period ending 1 October 2002 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 he is requesting an upgrade because it would assist him in his search for employment and a lift of his bar from military installations would allow him to access installations when needed. 3. On 12 August 1999, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 2 years. Although, the record is void of an enlistment contract for immediate reenlistment; his DD Form 214 shows he reenlisted on 14 June 2001. 4. His record contains three counseling forms during the period 17 April 2000 to 9 October 2001 for failing to be at his appointed place of duty, being arrested for possessing a controlled substance, and drinking while underage. 5. On 20 October 2000 (during his first enlistment), the applicant accepted nonjudicial punishment (NJP) for: 1 * being disrespectful to a noncommissioned officer (NCO) in language by saying "F_ you (expletive), F_ the 1SG (first sergeant) and CO (commander), F_ all of you, I am leaving this place" * willfully disobeying a lawful order from an NCO * violating a lawful general order by wrongfully consuming alcohol under the legal age 6. On 26 February 2002, he was convicted by summary court-martial for wrongfully possessing marijuana and using marijuana. He was sentenced to confinement for 30 days, forfeiture of pay for 1 month, and reduction to private (PVT)/E-1. 7. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c for commission of a serious offense: He received a court-martial for wrongful possession of a controlled substance and wrongful use of a controlled substance. Prior to that he received an Article 15, Uniform Code of Military Justice, for disrespect to a NCO and underage drinking. 8. On 5 March 2002, the counsel for the applicant requested the command withdraw the chapter proceedings for the following reasons: * to give the applicant an opportunity to rehabilitate * his case should be dealt with under AR 600-85 (Alcohol and Drug Abuse and Prevention and Control Program) * the command was not taking care of Soldiers but using a shortcut to separate the applicant without giving him his benefits * during the summary court-martial proceedings the applicant was unable to obtain the necessary witness to show he was not randomly selected for the urinalysis because the command was in a rush to complete it * over the applicant’s objection a document was submitted during the summary court-martial proceedings * the summary court-martial proceedings had not been approved by the summary court-martial convening authority and the applicant was not given the opportunity to ask for clemency * the command did not believe this instance of misconduct was serious enough to warrant trial by special court-martial * the chapter 14 should not have been initiated until the applicant failed the Army’s Substance Abuse Program * his packet does not contain his positive counseling and certificates 9. On the same date, the applicant submitted a conditional waiver acknowledging he had been notified of the pending separation action against him and he had been advised by his consulting counsel of the basis for the contemplated action, understood his rights, and elected to submit statements in his own behalf. a. It is unclear of the statements submitted by the applicant, they are not available, but the record contains a psychiatric evaluation and court documents regarding his childhood, the deaths of his mother and grandmother, termination of his father’s parental rights, and the applicant being abused by his foster parent. b. Additionally, the applicant indicated that he would waive consideration of his case before a board contingent upon receiving a discharge no less favorable than a general under honorable conditions discharge. The chain of command recommended disapproval of the conditional waiver. The separation approval authority disapproved the request for a waiver and referred the case to an administrative separation board. 10. On 21 August 2002, that administrative separation board convened and found the applicant’s acts constituted serious misconduct and recommended he be separated from the Army with an under honorable conditions discharge. 11. On 1 October 2002, the applicant was discharged accordingly. His service was characterized as under honorable conditions (general). He completed 3 years, 1 month, and 20 days of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * Army Commendation Medal * Army Achievement Medal * National Defense Service Medal * Army Service Ribbon * Rifle Marksman Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Item 18 (Remarks): He had continuous honorable service from 12 August 1999 to 13 June 2001 * Item 25 (Separation Authority): AR 635-200, paragraph 14-12c(2) * Item 28 (Narrative Reason for Separation): Misconduct 12. On 6 May 2011, the Army Discharge Review Board denied his petition, determining that he was properly and equitably discharged. 13. The applicant states he is requesting an upgrade because it would assist him in his search for employment and a lift of his bar from military installations would allow him to access installations when needed. His record shows he enlisted in at the age of 18 years old, he accepted one NJP and he was convicted by summary court-martial for possessing and using marijuana. 14. In regards to his installation privileges, the ABCMR's jurisdiction under Title 10, U.S. Code, section 1552 extends to any military record of the Department of the Army. It is the nature of the record and the status of the applicant that define the ABCMR's jurisdiction. The ABCMR does not have jurisdiction to grant the requested relief 15. AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, was a separation for commission of a serious offense as evidence by commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. a. Paragraph 14-12c(2) was a separation for commission of a serious offense – abuse of illegal drugs. It states first time drug offenders, Soldiers in the grade of sergeant and above, and all soldiers with 3 years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. b. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 16. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 guidance. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of his misconduct, and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was 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 there was no error or injustice in the applicant’s discharge or character of service, or a basis for clemency, and that relief is not warranted. The Board also determined there was no basis for lifting his bar from military installations. 2. The Board did concur with the administrative correction identified in the Administrative Note(s) below and recommends making the correction. 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: 1. 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. 2. The Board recommends making the administrative correction identified in the Administrative Notes(s) below to show award of a Parachutist Badge. X CHAIRPERSON 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): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 1 October 2002, is missing an entry of a badge earned. As a result, amend the DD Form 214 by adding the following entry to item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): Parachutist Badge. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. An honorable discharge was a separation with honor and entitled 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 have been clearly inappropriate. b. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. (1) Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. (2) Paragraph 14-12c(2) was a separation for commission of a serious offense – abuse of illegal drugs. It states first time drug offenders, Soldiers in the grade of sergeant and above, and all soldiers with 3 years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. c Adverse information from a prior enlistment or period of military service may be considered only when such information would have a direct and strong probative value in determining whether separation is appropriate. (1) This includes records of nonjudicial punishment and convictions by court- martial. Such information ordinarily will be used only in those cases involving conduct repeated over an extended period of time. (2) In unusual situations, conduct from a prior enlistment that does not constitute a pattern of conduct manifested over an extended period of time may be considered in determining whether retention or separation is warranted. For example, a single incident of misconduct occurring in the prior period of service that, by itself, would warrant separation may be considered if the officials in the soldier’s chain of command neither knew, nor reasonably should have known of, at the time the soldier re-enlisted. (3) Commanders who believe that a soldier’s case represents an unusual situation within the meaning of this paragraph should request guidance from the Commanding General (TAPC-PDT-P), 200 Stovall Street, Alexandria, VA 22332–0478. (4) Isolated incidents and events that are remote in time normally have little probative value in determining whether administrative separation should be effected. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS//