IN THE CASE OF: BOARD DATE: 5 November 2019 DOCKET NUMBER: AR20190004204 APPLICANT REQUESTS: The applicant requests an upgrade of his general under honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States in lieu of DD Form 149 (Application for Correction of Military Record) * Lowndes County Sheriff’s Department Records Department Record Check, dated 1 July 2014 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. His characterization hinders him from using his GI Bill at 100%. After repeatedly trying to find work in all kinds of fields, it has been told to him by his doctor that he need to find a light duty job that does not consist of long standing or heavy lifting. He has not been working so he cannot pay the other 30% to attend school. He has 728 days from his first enlistment and 1095 days from his second enlistment. He needs 2325 days of consecutive days in service to receive 100%. He has the days, but due to his discharge he cannot receive credit based on a technicality. b. He has not been in any trouble since his military service. He received full custody of his children. He hates welfare and would really like to just be able to make a living of some kind on his own for his family. He asks the Board to upgrade his discharge so that he may continue his education as well as being a productive citizen. He will forever be in debt to the Army. 3. On 5 May 2004, at the age of 20 years old, the applicant enlisted in the Regular Army. On 3 May 2006, he reenlisted for a term of 5 years. 4. His record contains two counseling forms during the period 19 October 2010 to 7 December 2010 for possession of illegal drugs; notification that he had been flagged (suspension of favorable actions); and notification proceedings under paragraph 14-12c, Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), had been initiated against him. 5. On 29 October 2010, the applicant accepted nonjudicial punishment (NJP) for wrongfully using marijuana. 6. In connection with his administrative separation proceedings, he underwent a mental status evaluation and was cleared for separation. 7. On 22 February 2011, the applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of AR 635- 200, chapter 14, paragraph 14-12c, for commission of a serious offense – abuse of illegal drugs. a. The applicant acknowledged 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, waived consideration of his case before an administrative separation board, and elected not to submit statements in his own behalf. b. The chain of command recommended approval of the separation with a general under honorable conditions discharge and on 9 March 2011, the appropriate separation authority approved the recommendation for separation. 8. On 21 March 2011, the applicant was discharged accordingly. His service was characterized as under honorable conditions (general). He completed 6 years, 10 months, and 17 days of net active service this period, with 4 years, 3 months, and 5 days of foreign service. He completed 4 years, 10 months, and 19 days since his last reenlistment. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows in: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * Iraq Campaign Medal with two campaign stars * Army Commendation Medal (2nd Award) * Army Good Conduct Medal * National Defense Service Medal * Global War On Terrorism Expeditionary Medal * Global War On Terrorism Service Medal * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Item 18 (Remarks): "Continuous Honorable Active Service from 20040505 – 20060502" * Item 25 (Separation Authority): AR 635-200, paragraph 14-12c(2) * Item 28 (Narrative Reason for Separation): Misconduct (Drug Abuse) 9. On 30 June 2015, the Army Discharge Review Board denied his petition for an upgrade of his discharge, determining that he was properly and equitably discharged. 10. The applicant provides: * DD Form 293, discussed above * Lowndes County Sheriff’s Department Records Department Record Check, dated 9 March 2014, showing the applicant does not have an arrest record within the jurisdiction of Lowndes County 11. 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. 12. 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: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The board applied Office of the Secretary of Defense's guidance on equity, injustice, or clemency to the complete evidentiary record, including the applicant’s statement. The Board found the statement, his two deployments to Iraq, and the nature and frequency of his misconduct (an incident of marijuana use) to be compelling. Therefore, the Board found the evidence to be sufficient as a basis for a recommendation to upgrade the characterization of his service to fully honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 showing his character of service as honorable 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 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 (Personnel Separations – Active Duty Enlisted Administrative Separations), 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. 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// ABCMR Record of Proceedings (cont) AR20190004204 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190004204 6 ABCMR Record of Proceedings (cont) AR20190004204 5