IN THE CASE OF: BOARD DATE: 14 January 2020 DOCKET NUMBER: AR20190007666 APPLICANT REQUESTS: The applicant requests an upgrade of his general discharge, under honorable conditions to fully honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of a DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release of Discharge from Active Duty) * Discharge Order 205-0231, dated 24 July 2002 * Personnel Qualification 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 he was young and did not understand the rules, at the time. 3. Prior to enlisting in the Regular Army the applicant had completed 4 months and 27 days of prior active service and 1 year, 6 months, and 18 days of prior inactive service. On 28 December 1999, at age 22, the applicant enlisted in the Regular Army for 3 years, in pay grade E-3, and he was assigned to Fort Hood, TX. He held military occupational specialty 63B (Light Vehicle Mechanic). 4. Ten Developmental Counseling Forms, dated between 31 January 2001 and April 2002, show the applicant was counseled on numerous occasions for various reasons to include failure to be at accountability formation (three times); failure to report for guard duty; a pattern of misconduct (being positive on a second urinalysis test); unsatisfactory performance and conduct; failure to be at his appointed place of duty at the time prescribed, specifically for taking the day off, when he did not have permission; failing to obey an order given by a noncommissioned officer to return to work after 1200 hours and finish painting the stair case; and for needing to improve his personal appearance, by pressing his uniform and shaving. 5. On 1 July 2001, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between on or about 9 April and 8 May 2001. His punishment consisted of reduction from pay grade E-3 to pay grade E-2, a forfeiture of pay, extra duty, and restriction. 6. On 18 July 2001, the applicant was issued a written reprimand for the use of an illegal substance as an administrative measure not as punishment. As a result of a random urinalysis conducted on 8 May 2001, he tested positive for the use of marijuana. On 12 June 2001, he gave a sworn statement admitting to the use of marijuana. 7. On 17 August 2001, after the applicant acknowledged receipt of the written reprimand and was given an opportunity to respond, the appropriate authority directed that the document be filed in his official military personnel file. 8. On 13 March 2002, he accepted NJP for wrongfully using marijuana between on or about 30 October and 26 November 2001. His punishment consisted of reduction from pay grade E-2 to pay grade E-1, a forfeiture of pay, extra duty, and restriction. 9. On 7 June 2002, the applicant's unit commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), paragraphs 14-12c, for commission of a serious offense, with a general discharge. The bases cited for recommendation were two Field Grade Articles 15, dated 7 July 2001 and 17 April 2002, both for wrongful us of marijuana. a. The applicant acknowledged notification and consulted with legal counsel. He was advised of the impact of the discharge action and he requested consideration of his case by an administrative separation and an opportunity to appear before the board if he were going to receive a characterization of under other than honorable conditions. b. He requested through his chain of command the opportunity to remain in the U.S. Army. He stated he joined the Army with certain goals in mind. Specifically, he wanted to travel, to go to Airborne School, and he wanted to learn more about being a mechanic. He had jeopardized his goals, but he learned his lesson and was prepared to meet his responsibilities. (1) After the July 2001 urinalysis, he requested to attend the ADAPCP (Alcohol Drug Abuse Prevention Control Program) to help with his problem. He was told that he would be allowed to go, but due to his work [schedule] it never happened. He continued to struggle with his problem. After the November 2001 urinalysis, he was sent to ADAPCP but withdrawn because of the pending discharge action. (2) Under AR 600-85, he was supposed to be able to attend ADAPCP to help him rehabilitate. If successful, he could still be of value to the Army. Although he was pulled out of ADAPCP early, he felt as though he had rehabilitated himself and was prepared to fulfill his responsibilities. He requested another chance to prove himself to his fellow Soldiers, his chain of command, and the U.S. Army. No response to this letter is available. c. However, his unit commander recommended separation and stated that he should not be transferred to the Individual Ready Reserve (IRR). He had no potential for useful service under conditions of full mobilization. 10. On 12 June 2002, his intermediate commander recommended separation from the Army with a general, discharge under honorable conditions. 11. On 12 June 2002, the separation authority directed that the applicant not be transferred to the IRR, further rehabilitation was not feasible nor appropriate, and the applicant would be discharged with a characterization of service of general, under honorable conditions. 12. On 2 August 2002, he was discharged under the provisions of chapter 14-12c(2), AR 635-200. His DD Form 214 shows he completed 2 years, 7 months, and 5 days of net active service this period. He was awarded the National Defense Service Medal and the Army Service Ribbon. His DD Form 214 also reflects in: * (Character of Service) – Under Honorable Conditions, General * (Separation Authority) – AR 635-200, Paragraph 14-12c(2) * (Narrative Reason for Separation) – Misconduct 13. AR 635-200, chapter 14 provides for the separation of members who demonstrate or display patterns of misconduct, as evidenced by the applicant’s misconduct for wrongful use of marijuana on two occasions and the receipt of two NJP’s for those offenses. 14. The applicant was 22 years old at the time he enlisted and separated under the provisions of AR 635-200, paragraph 14-12c, for misconduct, due to wrongful use of marijuana on two different occasions. 15. In reaching its determination, the Board can consider the applicant's petition, his age, and his service record in light of the published Department of Defense 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 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. 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. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provides: 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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 3. Maximum Punishment Chart, Manual for Courts-Martial shows the maximum punishments include punitive discharges for violating the following articles of the UCMJ: Article 112a (Wrongful Use, Possession, etc., Controlled Substances) shows marijuana (possession of less than 30 grams or use), phenobarbital, and Schedule IV and V controlled substances. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. 4. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony (to include that provided by an applicant), 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) AR20190007666 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190007666 6 ABCMR Record of Proceedings (cont) AR20190007666 5