IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190006957 APPLICANT REQUESTS: The applicant requests his service characterization of under honorable conditions 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, 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 his separation from the Army was due to one violation in his career. In his short time, he made only one mistake and list pay and was required to do 45 days extra duty. After his punishment he was told he would be discharged with no warning. He feels the punishment should have been enough. His record was otherwise good. 3. As directed by the applicant’s commander, the applicant underwent a medical examination on 16 March 2006 and again on 4 November 2008 both deeming him qualified for separation. 4. On 15 December 2008, the applicant was notified by his commander that he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200, (Active Duty Enlisted Administrative Separations) paragraph 14-12c, misconduct – abuse of illegal drugs; positive for wrongful use of cocaine use. The applicant acknowledged being notified for the contemplated separation action against him; he was made aware of his available rights and consulted with legal counsel indicating he would not submit a statement on his own behalf. He also, voluntarily waived consideration of his case by an administrative separation board and understood the waiver does not preclude him from receiving an under other than honorable characterization of service. 5. On 17 December 2008, the Senior Defense Counsel requested on behalf of the applicant, he remain on active duty to continue serving his Nation and perform his duties while remain drug free. The applicant had just graduated ASAP and learned from the opportunity and wishes to remain in the Army. The applicant stated, if given an opportunity for the sake of his wife and children, he will not use any illegal drugs again. The Senior Defense Counsel, went on to state the Army is not a one-strike Army and should be allowed to recover from his mistakes to continue in the Army. The investment that was made in the applicant should not be wasted. 6. On 15 January 2009, the applicant’s commander recommended he be discharged under the provisions of AR 635-200, Chapter 14-12c for misconduct specifically for testing positive for wrongful cocaine use. His intermediate commander recommended approval, recommended that rehabilitation requirements be waived if they have not been met, and not be transferred to the individual ready reserve (IRR). 7. On 4 February 2009, the appropriate approval authority approved the recommendation for discharge of the applicant and directed he be issued an under honorable discharge and not be transferred to the individual ready reserve (IRR). 8. On 18 February 2009, the applicant was discharged accordingly; his DD Form 214 shows he completed 2 years, 10 months, and 14 days of net active service. He was awarded or authorized: * Army Achievement Medal * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon 9. AR 635-200, Chapter 14 separates members who demonstrate or display patterns of misconduct, as evidenced by his multiple instances of misconduct and counseling. Paragraph 1-18 states, Commanders will insure that adequate counseling and rehabilitative 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 it would not product a quality Soldier. 10. The applicant states his separation from the Army was due to one violation in his career. In his short time, he made only one mistake and list pay and was required to do 45 days extra duty. After his punishment he was told he would be discharged with no warning. His records show he acknowledged the separation notification, did not submit a statement on his own behalf, and acknowledge opportunity for counsel. He served honorably from 15 January 2007 to 2 April 2008. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD 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, his graduation from ASAP and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct 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 that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of drug abuse. d. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190006957 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190006957 5 ABCMR Record of Proceedings (cont) AR20190006957 4