BOARD DATE:  30 July 2020

		DOCKET NUMBER:  AR20190003970


APPLICANT REQUESTS: 

*	an upgrade of his characterization of service form under honorable conditions 
(general) to honorable

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)

FACTS:

1.  The applicant did not file within the three-year period provided in Title 10, United 
States Code, in 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 that he failed a urinalysis test on 11 November 2002.   
He admits that he had marijuana in his system; however, the guidelines concerning his 
case were changed on 1 November 2002 to state that service members would receive 
counseling instead of a misconduct discharge for their first offense.  The applicant 
states that he discharged with a under honorable conditions characterization of service 
without the opportunity to receive alcohol and other drug abuse treatment programs.  
The applicant is in the process of using his State of Wisconsin education bill to do an 
apprenticeship in computer numerical control; however, the program requires a service 
member to have an honorable discharge.

3.  The applicant enlisted in the Regular Army on 14 April 2000.  After initial entry 
training, he was awarded military occupational specialty 11C (Indirect Fire Infantryman).  

4.  A DA Form 4856 (Developmental Counseling Form), dated and signed  
17 December 2002, shows the applicant received counseling for a positive urinalysis 
(positive tetrahydrocannabinol (THC)) test.  The form shows the applicant’s chain of 
command informed him that he would potentially receive punishment under Article 112a 
(wrongful use or possession of controlled substance) of the Uniform Code of Military 
Justice (UCMJ) for use of an illegal controlled substance (marijuana).  On 21 October 
2002, the applicant’s company conducted a urinalysis and the results revealed that the 
applicant had used a substance containing THC.  In addition, the form shows the chain 
of command recommended the applicant receive a field grade article 15 and 
commenced separation procedures in accordance with Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel).

5.  A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military 
Justice (UCMJ)) indicates he accepted non-judicial punishment on 18 December 2002, 
while assigned to Fort Hood, TX, for wrongfully using marijuana between on or about 
21 September 2002 and 21 October 2002 in violation of Article 112a.  

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated  
8 January 2003, shows a flag was removed on 8 January 2003.  The form shows 
disciplinary action taken to be the reason for removing the flag.    

7.  The applicant's immediate commander recommended that he be separated under 
the provisions of AR 635-200, chapter 14, paragraph 14-12c, by reason of commission 
of a serious offense.  The commander stated the applicant received a field grade article 
15 for the wrongful use of marijuana.  

	a.  The applicant waived counsel and acknowledged his rights on 19 February 2003.  
He understood he was entitled to have his case heard by an administrative separation 
board; however, waived his right to an administrative separation board in exchange for 
an issuance of a General Discharge Certificate.  
 
     b.  He further understood he could encounter prejudice in civilian life if a general 
discharge was issued and he declined to submit a statement in his own behalf. 

8.  AR 635-200 establishes that reasonable efforts should be made to identify service 
members who exhibit a likelihood for early separation to improve their chances for 
retention through counseling, retraining, and rehabilitation.  The potential for 
rehabilitation and further useful military service will be considerate by the separation 
authority.  Rehabilitative transfer may be waived when rehabilitation would serve no 
useful purpose or produce a quality service member.

9.  The applicant's immediate commander subsequently recommended that the 
applicant be separated from the service under the provisions of AR 635-200, paragraph 
14-12c, by reason of misconduct – commission of a serious offense.  The commander 
stated the applicant received a field grade Article 15 for the wrongful use of marijuana.  
The commander also cited the applicant’s actions and conduct that showed that 
applicant was unsuitable for further military service.  In addition, the commander 
recommended that the requirement for a rehabilitative transfer be waived.   
The commander did not offer a recommendation for characterization of service.   

10.  His intermediate commander recommended that the requirement for a rehabilitative 
transfer be waived and further recommended approval of the discharge with a 
characterization of under honorable conditions (general).  

11.  The separation authority directed the rehabilitative transfer be waived and approved 
the applicant’s discharge under AR 635-200, chapter 14, paragraph 14-12b,  
for patterns of misconduct with a characterization of under honorable conditions 
(general).

12.  The applicant’s separation records show that the applicant received a mental status 
evaluation and medical examination; however, the documents are not contained in the 
applicant’s Personnel Electronic Records Management System (iPERMS).

13.  The applicant was discharged on 14 April 2003, under the provisions of  
AR 635-200, paragraph 14-12b, with an under honorable conditions (general) 
characterization of service.  The DD Form 214 he was issued shows he was credited 
with the completion of 3 years and 1 day of net active service.  Additionally, it shows the 
following entries:

*	Item 26 (Separation Code): "JKA"
*	Item 27 (Reentry Code): "3"
*	Item 28 (Narrative Reason for Separation): "Misconduct"

14.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  
Chapter 14 establishes policy and prescribes procedures for separating members for 
misconduct. The regulation establishes that relevant facts may mitigate the nature of an 
offense.  A single drug abuse offense may be combined with one or more minor 
disciplinary infractions or incidents of misconduct and processed for separation under 
paragraph 14-12a or b, as appropriate.  A discharge under other than honorable 
conditions is normally considered appropriate for a Soldier discharged under this 
chapter.  

15.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

?
BOARD DISCUSSION:

The Board carefully considered the applicant's request, evidence in the records, and 
published Department of Defense 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 
and 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 the character of service the applicant received upon 
separation was not in error or unjust.


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.
?
REFERENCES:

1.  Title 10, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 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 3 year 
statute of limitations if the ABCMR determines it would be in the interest of justice to do 
so.

2.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.

     a.  A reasonable effort should be made to identify service members who exhibit a 
likelihood for early separation to improve their chances for retention through counseling, 
retraining, and rehabilitation.  The potential for rehabilitation and further useful military 
service will be considerate by the separation authority.  Waiver of rehabilitative transfer 
may be waived when rehabilitation would serve no useful purpose or produce a quality 
service member.    

	b.  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.  An honorable discharge is a separation with honor and entitles 
the recipient to benefits provided by law.

     c.  A general discharge is a separation from the Army under honorable conditions.  
When authorized, it is issued to Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

     d.  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), commission of a serious offense, and 
convictions by civil authorities.  Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely 
to succeed.  The regulation establishes that relevant facts may mitigate the nature of an 
offense.  A single drug abuse offense may be combined with one or more minor 
disciplinary infractions or incidents of misconduct and processed for separation under 
paragraph 14-12a or b, as appropriate.  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 such is 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)	 AR20190003970


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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