ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  21 November 2019 DOCKET NUMBER:  AR20190006054 


APPLICANT REQUESTS:  The applicant requests his service characterization of 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)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was young and takes full responsibility for his actions but feltlike he wasn’t given adequate opportunity to correct the matter and be productive in theArmy.  He felt at the time he was being made an example of to the other Soldiers asopposed to rehabilitating him and salvage the remainder of his military career.  This washis only offense and wish he could take it back.  Because of this blemish he’s unable toapply for benefits.  He served his country during the war proudly.

3.On 7 March 2002, the applicant enlisted in the Regular Army at the age of 21.Although his record is void of a personnel qualification record (PQR), availableinformation shows he was a petroleum supply specialist (92F10); he was awarded theArmy Commendation Medal, National Defense Service Medal, and the Army ServiceMedal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism ServiceMedal.

4.On 1 September 2004, he received non judicial punishment (NJP) for wrongful use ofmarijuana.

5.As directed by the applicant’s commander, the applicant underwent a medicalexamination on 27 August 2004 and a mental examination on 14 October 2004 thatshow the applicant was qualified for separation.
6.The applicant was notified by his commander that he was initiating action to separatehim under the provisions of Army Regulation (AR) 635-200, (Active Duty EnlistedAdministrative Separations) paragraph 14-12c, misconduct – abuse of illegal drugs.The applicant acknowledged being notified for the contemplated separation actionagainst him; he was made aware of his available rights and consulted with legal counselindicating he would not submit a statement on his own behalf.

7.The applicant’s commander recommended he be discharged under the provisions ofAR 635-200, Chapter 14-12c for misconduct, specifically, having a positive urinalysistest for marijuana on 4 May 2004.  His intermediate commander recommendedapproval and recommended that rehabilitation requirements be waived if they have notbeen met.

8.The appropriate approval authority approved the recommendation for discharge ofthe applicant and directed he be issued an under honorable discharge and not betransferred to the individual ready reserve (IRR).

9.On 15 November 2004, the applicant was discharged accordingly; his DD Form 214shows he completed 2 years, 8 months, and 9 days of net active service.  He wasawarded or authorized:

•Army Commendation Medal

•Global War on Terrorism Expeditionary Medal (GWTEM)

•Global War on Terrorism Service Medal (GWTSM)

•National Defense Service Medal

•Army Service Ribbon



10.The applicant applied to the ABCMR.  His request for upgrade was denied.  Theboard stated in part, the applicant was properly and equitably discharged.
11.AR 635-200 states commanders will insure that adequate counseling andrehabilitative measures have been taken before initiating action to separate a member.Waiving rehabilitation applies when it would not be in the best interest of the Army as itwould not product a quality Soldier.  Chapter 14 separates members who demonstrateor display patterns of misconduct, as evidenced by his multiple instances of misconductand counseling.
12.The applicant states he was young and takes full responsibility for his actions butfelt like he wasn’t given adequate opportunity to correct the matter and be productive inthe Army.  He felt at the time he was being made an example of as opposed to gettinghim help.  His record shows he was given NJP for a positive urinalysis for marijuanaand as a result the commander initiated action to separate him.  His record is void of hisleadership enrolling him in the Army Substance Abuse Program (ASAP).  He wasawarded an ARCOM, he deployed to Iraq from 6 April 2003 to 5 April 2004 and received GWTEM and GWTSM. 

13.The applicant requests an upgrade so that he may receive benefits.  The ABCMR isnot authorized to grant requests for upgrade of discharges solely for the purpose ofmaking the applicant eligible for veterans' benefits; however, in reaching itsdetermination, the Board can consider the applicant’s petition and his service record inaccordance with the published equity, injustice, or clemency guidance.

BOARD DISCUSSION: 





1.After reviewing the application and all supporting documents, to include the DoDguidance on liberal consideration when reviewing discharge upgrade requests, theBoard found that relief is not warranted.2.The Board noted that applicant’s service in Iraq and his military awards butconsidered the seriousness of the misconduct of use of an illegal drug (marijuana)contrary to required military discipline shows that his service did not meet the standardsof acceptable conduct and performance of duty for Army personnel warranting a fullyhonorable discharge.3.The Board found that the applicant was properly discharged according to regulation,had the benefit of legal counsel, and was correctly processed.  The Board found that hisgeneral under honorable conditions discharge under the circumstances was equitableand just.  The Board did not find reason to grant clemency.

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. 

Microsoft Office Signature Line...

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 militaryrecords 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 oflimitations 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 enlistedpersonnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.  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.  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 UOTHC discharge 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.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.   
 
     d.  Paragraph 14-12c provides for the separation when there is misconduct involving acts of drug abuse.  
          
     e.  Paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not product a quality Soldier 
  
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.  
 
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