IN THE CASE OF: BOARD DATE: 30 January 2020 DOCKET NUMBER: AR20190007073 APPLICANT REQUESTS: that his Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certification Release of Discharge) 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. He requests an upgrade because he feels that although he made bad choices while in the Army, he wants his family to know that he served his country. 3. On 11 May 2000, at the age of 19, he enlisted in the Army on a 6 year contract. 4. He completed both Basic (BCT) and Advanced Individual Training (AIT), and was awarded the military occupational specialty (MOS) 13F (Fire Support Specialist). The highest rank he obtained was Private First Class (PFC/E3) on 11 May 2001. He was assigned to Camp Stanley Korea for 12 months and subsequently assigned to Fort Carson, Colorado. 5. While assigned to Fort Carson, he received 2 Article 15s for illegal use of marijuana * On 14 August 2002 punishment was reduction to the grade of Private (E1); forfeiture of $552.00 per month for 2 months; 45 days extra duty; and 45 days restriction to place of duty, place of worship, dining facility, billets and medical/dental facilities. * On 25 February 2003, punishment was forfeiture of $545.00 per month for 2 months, 45 days extra duty and 45 days restriction. 5. On 22 May 2003, the applicant received a mental status evaluation. The mental status evaluation psychologically cleared the applicant for administrative actions deemed appropriate by the command. 6. On 19 June 2003, the applicant’s immediate commander notified him that he was being recommended for separation in accordance with AR 635-200, Chapter 14 for pattern of misconduct for drug abuse. The applicant acknowledged the command’s intent to discharge him, acknowledged his available rights and spoke with legal counsel. He was advised his available rights and the basis for discharge under the provision of Army Regulation 635-200, chapter 14. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits and did not submit statements in his own behalf. a. The commanders submitted the recommendation for separation and indicates a physical examination was completed. b. Neither the available evidence nor the commanders recommendation show whether the applicant was voluntarily or involuntarily referred to Alcohol and Drug Abuse Prevention and Control Program at any time during his career for abuse of alcohol or drugs or received the required ADAPCP initial screening or medical evaluation. 7. On 21 August 2003, the approval authority approved the discharge and authorized his service to be characterized as UOTHC and waived rehabilitation according to AR 635-200 Para 1-18. 8. On 11 September 2003, he was discharged accordingly, his service was characterized as UOTHC for misconduct. His DD 214 shows he completed 3 years, 4 months, and 1 day of net active service to include 1 year, 1 month, and 6 days of Foreign Service and was awarded or authorized: * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter M16 Rifle. 9. AR 635-200 separates members who demonstrate or display patterns of misconduct, as evidenced by his multiple instances of misconduct of illegal drug abuse. 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. When a commander determines that a Soldier who has never been enrolled in Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) lacks the potential for further useful service the Soldier will be screened according to AR 600-85. If found non-dependent, the Soldier will not be rehabilitated but will be considered for separation under other appropriate provisions of AR 635-200. 10. AR 600-85 states, in pertinent part, the commander will interview all soldiers suspected of or identified for drug or alcohol abuse and refer the Soldier to ADAPCP for initial screening. An initial screening is conducted referred or voluntarily seek treatment in the program. Medical evaluation of illegal drug abusers is required following ADAPCP screening except for individuals who test positive for THC. A medical evaluation is also required in cases of suspected alcohol dependency, and in all cases prior to entry into in- patient treatment. The commander, supervisor, clinical director, counselor or Soldier may request a medical evaluation by a physician at any time to determine the extent of alcohol or other drug abuse by soldier. Medical evaluation determine whether serious medical illness is indicated because of alcohol or drug abuse. 11. The applicant states that since leaving the military, he does not utilize drugs nor does he support those that do. He is an avid church goer and gives help and support in his community. He provide two letters of support that spoke on his desire to help those in need as well as his leadership skills. The citizens of his county have benefited from his initiated outreach projects. 12. His records shows his misconduct started after completing a successful tour in Camp Casey Korea; he received 2 Article 15s for illegal use of marijuana. As a result, the immediate commander initiated his separation. 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, the absence of ADAPCP enrollment, the separation packet and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The applicant provided a statement regarding post-service achievements and 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 should be upgraded as a matter of clemency. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 amending the DD Form 214 for the period of service ending 11 September 2003 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 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, U.S. Code, 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 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. AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program) states Command identification occurs when a commander observes, suspects or otherwise becomes aware of an individual adversely affected by alcohol or other drugs. Once identified the Soldier will be interviewed by the unit commander or designated representative, and if appropriate, referred to ADAPCP for initial screening. a. When an individual is identified voluntarily or involuntarily the unit commander will: * Advise them of their rights * Explain the provisions of limited use * Interview and inform them of the evidence * Give them the opportunity to provide additional evidence, including information of drug sources * Collect any illegal drugs or drug paraphernalia the soldier voluntarily relinquishes and turn over to the provost marshal b. The command will refer all individuals suspected/identified to ADAPCP. Medical evaluation is required unless a urinalysis is positive for THC alone. Soldiers with blood alcohol levels of .05 percent or above while on duty will be to the ADAPCP for screening and evaluation. Individual referred by the commander for an initial screening or interview, regarding less of the means of identification, will be referred with a DA Form 2496 (Disposition Form). c. An initial screening is conducted referred or voluntarily seek treatment in the program. The initial screening will take place by an ADAPCP staff member within four days of referral. The counselor will inform the soldier of the limited use policy to the disclosure of past drug use or possession of drugs incidental to personal use. If referred for medical evaluation, a DA Form 4465 (ADAPCP Client Intake Record (CIR)) and the ADAPCP Military Client Referral and Screening Record provided will be provided to the evaluating physician. Any other comments or recommendations made to the physician will be recorded on a SF 600 (Health Record) and accompany the CIR, ADAPCP referral and screening record. d. Medical evaluation of illegal drug abusers is required following ADAPCP screening except for individuals who test positive for THC. A medical evaluation is also required in cases of suspected alcohol dependency, and in all cases prior to entry into in-patient treatment. The commander, supervisor, clinical director, counselor or Soldier may request a medical evaluation by a physician at any time to determine the extent of alcohol or other drug abuse by soldier. Medical evaluation determine whether serious medical illness is indicated because of alcohol or drug abuse. 3. 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 9 notes that when a commander determines that a Soldier who has never been enrolled in Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) lacks the potential for further useful service the Soldier will be screened according to AR 600-85. If found non-dependent, the Soldier will not be rehabilitated but will be considered for separation under other appropriate provisions of AR 635-200. d. 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 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 4. 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) AR20190007073 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190007073 5 ABCMR Record of Proceedings (cont) AR20190007073 4