IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20190007740 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to either general under honorable conditions or honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Separation Orders * DD Form 2648 (Pre-Separation Counseling Checklist) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). However, the Army Board for Correction of Military Records (ABCMR) 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 discharge was unjust due to failed urinalysis tests; in addition, his separation action was excessive, based on the nature of his case. He argues an under other than honorable conditions character of service is normally given to Soldiers who committed violence, were convicted by a civil court, or had security violations. 3. The applicant's service records show: a. After obtaining his parent's written consent, he enlisted into the Regular Army on 6 August 1997 for a 3-year term; he was 18 years old. Following initial training, orders assigned him to Fort Carson, CO; he arrived on 10 December 1997 b. On 1 July 1999, the applicant's unit conducted a urinalysis; the results showed the applicant tested positive for cocaine. The applicant's unit held a second urinalysis on 3 August 1999; the applicant was positive for marijuana. c. At some point prior to 15 October 1999, the applicant's unit promoted him to specialist /E-4. On 15 October 1999, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of cocaine use (respectively between 1 June and 1 July 1999, and 3 July and 3 August 1999). Punishment included reduction to private/E-1. d. On 10 December 1999, the applicant's commander advised him of his intent to separate the applicant under section III (Acts or Patterns of Misconduct), paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The reasons for this proposed action were the applicant's use of cocaine during two respective periods (1 June to 1 July 1999 and 3 July to 3 August 1999). While acknowledging the separation authority was not bound by his recommendation, the commander stated he was recommending an under other than honorable conditions character of service. e. On 14 December 1999, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He requested counsel, waived his right to appear before an administrative separation board, and affirmed counsel had told of his right to submit a conditional waiver in lieu of having his case considered by an administrative separation board. He also elected not to submit statements in his own behalf. f. On 29 December 1999, the separation authority approved the commander's recommendation and directed the applicant's under other than honorable conditions discharge, per paragraph 14-12c, AR 635-200; on 7 January 2000, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 5 months, and 2 days of his 3-year enlistment contract. The separation authority was paragraph 14-12c (2) (Commission of a Serious Offense – Abuse of Illegal Drugs). 4. The Army's policies toward drug abusers and their rehabilitation have evolved over time. a. During the applicant's era of service, AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program) stated those Soldiers identified as drug abusers who, in the opinion of their commanders, warranted retention, would be afforded the opportunity for rehabilitation. Enlisted Soldiers with fewer than 3 years of service, but who had had two separate instances of drug abuse were to be processed for separation. b. Effective October 2001, the Army revised the regulation (renaming it the Army Substance Abuse Program (ASAP)) and amended its approach to alcohol and drug abuse. ASAP's stated principles affirmed use of illicit drugs was inconsistent with Army values, and mandated unit commanders intervene early. Without exception, all Soldiers identified as drug abusers were required to be screened at an ASAP counseling center. Based on the screening, nondependent drug users could be enrolled into ASAP, if clinically recommended and the Soldier's chain of command concurred. Drug- dependent abusers were to be treated, but not retained. 5. Per the version of AR 635-200 in effect at the time, commanders were to initiate separation action under chapter 14 when Soldiers had committed serious offenses for which the UCMJ authorized a punitive discharge as a maximum punishment; abuse of illegal drugs was deemed a serious offense, and the UCMJ showed a punitive discharge could be adjudged for wrongful use of controlled substances. a. An under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. b. Regarding the discharge of first-time drug offenders, commanders were allowed to use their discretion in cases where the Soldier was below the grade of E-5 and had less than 3 years total military service; however, the regulation mandated separation action for all second-time offenders. 6. The applicant essentially argues his discharge was unjust and his under other than honorable conditions character of service was excessively harsh, given the nature of his case. 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 record 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 reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for 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 relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x 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 3 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 3-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. Paragraph 3-7a (Honorable Discharge). An honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to evaluate the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should take into account as the governing factor. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who had committed a serious military or civilian offense, and for which the UCMJ authorized a punitive discharge for the same or similar offense. Per subparagraph (2), abuse of illegal drugs was deemed serious misconduct. The separation of first-time offenders below the grade of E-5 was at the commander's discretion; the regulation required the initiation of separation action for Soldiers with 3 or more years of total military service, grades of sergeant and above, and all second-time offenders. 3. The Manual for Courts-Martial, United States 1984, Table of Maximum Punishments showed Article 112a (Wrongful Use, Possession, etc. of Controlled Substances) included both the dishonorable and bad conduct discharge as punishments. 4. AR 600-85 (Alcohol and Drug Abuse Prevention and Control Program), in effect at the time, stated those Soldiers identified as drug abusers who, in the opinion of their commanders, warranted retention, would be afforded the opportunity for rehabilitation. Enlisted Soldiers with fewer than 3 years of service, but who had had two separate instances of drug abuse were to be processed for separation. Effective October 2001, the regulation was revised and renamed to the Army Substance Abuse Program (ASAP). ASAP's stated principles affirmed use of illicit drugs was inconsistent with Army values, and mandated unit commanders intervene early. Without exception, all Soldiers identified as drug abusers were required to be screened at an ASAP counseling center. Based on the screening, nondependent drug users could be enrolled into ASAP, if clinically recommended and the Soldier's chain of command concurred. Drug-dependent abusers were to be treated, but not retained. 5. 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. 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. 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) AR20190007740 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190007740 6 ABCMR Record of Proceedings (cont) AR20190007740 4