IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190008005 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 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 made a mistake by failing a drug urinalysis test. He was a good troop and was never in trouble. He completed a successful deployment to Bosnia. His discharge characterization was unfair, because others have received an honorable discharge for failing a urine test. He is asking for an honorable discharge. 3. On 27 January 1998, the applicant enlisted in the Regular Army for a period of 3 years. He was 20 years old when he enlisted in the Regular Army. He completed training requirements and was awarded military occupational specialty 19K (Armor Crewman). 4. In June 2000, a Specimen Custody Document for drug testing shows he tested positive for marijuana. 5. On 9 August 2000, the applicant received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana. His punishment consisted of reduction to pay grade E-2, forfeiture of pay for two months, extra duty, and oral admonishment. He did not appeal. 6. In September 2000, a legal action request form for chapter 14 (misconduct) administrative separation shows his reason for this request was based on his second positive urinalysis and second field grade Article 15 (NJP) of the UCMJ. 7. On 21 September 2000, the applicant’s commander notified him that under the provisions of chapter 14, Army Regulation (AR) 635-200 (Enlisted Personnel Separations), he was initiating action to separate him for misconduct, commission of a serious offense. The specific reason for separation action was the applicant’s wrongful use of marijuana. The applicant was advised of his rights and consulted with counsel. a. He was advised of the basis for his contemplated separation for misconduct, its effects, and of the rights available to him. He elected to submit statements in his own behalf; however, they are not available. b. His chain of command recommended approval of the separation action and to waive further rehabilitative requirements. c. The separation authority approved his discharge, waived further rehabilitative requirements in accordance with AR 635-200, paragraph 1-18, and directed he receive a General Under Honorable Conditions Discharge Certificate. 8. On 20 November 2000, the applicant was discharged for misconduct. His DD Form 214 shows he completed 2 years, 9 months, and 24 days of net active service that was characterized as under honorable conditions (general). He was not awarded a personal decoration. 9. The applicant contends he was young; nevertheless, the Board notes that the applicant was 20 years of age when he enlisted, had satisfactory completed training and had served for more than a year before any negative incidents are documented. His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature. 10. Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 11. In reaching its determination, the Board should consider the applicant's petition, his service record, and his statement 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 majority found insufficient evidence of in-service mitigation to overcome the misconduct; one member found the discharge to be too harsh based on the misconduct. The Board found that 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 majority 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 majority 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 (Enlisted Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted. 3. 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. a. 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. b. 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, 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) AR20190008005 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190008005 5 ABCMR Record of Proceedings (cont) AR20190008005 4