ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		
		BOARD DATE:  24 August 2020

		DOCKET NUMBER:  AR20190014978


APPLICANT REQUESTS:  an upgrade of his discharge under other than honorable 
conditions to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	DA Form 2-1 (Personnel Qualification Record – Part II), reviewed 21 June 2000
*	Enlisted Record Brief, dated 4 December 2001
*	Servicemembers' Group Life Insurance Election and Certificate, dated 
26 December 2001
*	Orders 360-0001, Headquarters, 24th Infantry Division (Mechanized) and 
Fort Riley, dated 26 December 2001
*	DD Form 2648 (Preseparation Counseling Checklist), dated 27 December 2001
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

REFERENCES:

1.  Title 10, U.S. Code, 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 Army Board for Correction of Military 
Records (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.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13 stated when a Soldier is to be discharged under other than 
honorable conditions, the separation authority will direct an immediate reduction to the 
lowest enlisted grade.

	b.  Paragraph 3-7a stated an honorable discharge is a separation with honor.  The 
honorable characterization is appropriate when the quality of the Soldier'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.  Unless otherwise ineligible, a Soldier may receive an honorable 
discharge if he/she has, during his/her current enlistment, period of obligated service, or 
any extensions thereof, received a personal decoration.

	c.  Paragraph 3-7b stated 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.

	d.  Paragraph 3-7c stated a discharge under other than honorable conditions is an 
administrative separation from the service under conditions other than honorable.  It 
may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by 
court martial.

	e.  Chapter 10 provides that a member who has committed an offense or offenses, 
the punishment for any of which, under the Uniform Code of Military Justice (UCMJ) and 
the Manual for Courts-Martial, 1998, includes a bad conduct or dishonorable discharge, 
may submit a request for discharge in lieu of trial by court-martial.

		(1)  A discharge under other than honorable conditions is normally appropriate 
for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation 
authority may direct a general discharge if such is merited by the Soldier's overall record 
during the current enlistment.

		(2)  For Soldiers who have completed entry-level status, characterization of 
service as honorable is not authorized unless the Soldier's record is otherwise so 
meritorious that any other characterization clearly would be improper.

3.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and 
administrative instructions concerning individual and unit military awards.  Individual 
U.S. Army decorations consist of the Medal of Honor, Distinguished Service Cross, 
Distinguished Service Medal, Silver Star, Legion of Merit, Distinguished Flying Cross, 
Soldier's Medal, Bronze Star Medal, Purple Heart, Meritorious Service Medal, Air Medal, 
Army Commendation Medal, and Army Achievement Medal.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Service 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 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.  This guidance does not mandate relief, but rather provides standards 
and principles to guide BCM/NRs 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.

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, 
U.S. Code, section 1552(b); however, the 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 does not represent his true character and ample 
time has passed to request an upgrade of his service characterization.

3.  The DD Form 2624 (Specimen Custody Document – Drug Testing), dated 25 June 
2001, shows the applicant tested positive for tetrahydrocannabinol (THC).

4.  The DA Form 4856 (Developmental Counseling Form), dated 10 July 2001, states 
the applicant was counseled by his first sergeant for testing positive for THC during the 
battery urinalysis conducted on 18 June 2001.  The applicant indicated he agreed with 
the information.

5.  The DD Form 2624, dated 30 July 2001, shows the applicant tested positive for 
THC.

6.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 31 July 
2001, shows the applicant received nonjudicial punishment under the provisions of 
Article 15, UCMJ, for wrongfully using marijuana on or between 20 May 2001 and 
18 June 2001.  He did not demand trial by court-martial.  He requested a closed 
hearing; a person to speak on his behalf; and indicated he would not present matters in 
defense, mitigation, and/or extenuation.  His punishment consisted of reduction in 
rank/grade to private two/E-2, forfeiture of $584.00 pay per month for 2 months 
(suspended to be automatically remitted if not vacated before 28 September 2001), and 
extra duty for 45 days.  The applicant elected not to appeal.

7.  The DA Form 4856, dated 2 August 2001, states the applicant was counseled by his 
section chief for failing to be at the appointed place and at the appointed time on 27 July 
2001.  The applicant indicated he agreed with the information.

8.  The DD Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 
3 November 2001, shows the applicant was questioned by the U.S. Army Criminal 
Investigation Command about his suspected wrongful use, possession, and distribution 
of a controlled substance.  He acknowledged he understood his rights and elected to 
retain counsel.

9.  The Criminal Investigation Division Report of Investigation, dated 6 November 2001, 
states the Fort Riley Military Police desk sergeant notified their office that suspected 
marijuana was found in Building 7003A, Room 103.  The investigation established 
probable cause to believe the applicant committed the offense of wrongful possession 
of marijuana on 3 November 2001.  A health and welfare inspection was conducted of 
the applicant’s barracks room, which resulted in the discovery of marijuana seeds and 
stems.

10.  The DA Form 4856, dated 13 November 2001, states the applicant was counseled 
by his first sergeant for leaving his place of duty resulting in a security violation, being 
drunk on charge-of-quarters duty, and for having illegal drugs in the barracks on 
2 November 2001.  He informed the applicant that he was going to recommend 
imposition of nonjudicial punishment under the provisions of Article 15 and possible 
separation from the U.S. Army under the provisions of Army Regulation 635-200.  The 
applicant indicated he agreed with the information.

11.  The DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 
13 November 2001, shows a flag was initiated against the applicant's records for 
adverse action effective 13 November 2001.

12.  The DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) 
(page 1 only) states the applicant committed an offense of wrongful possession of 
marijuana on 3 November 2001.

13.  The DD Form 458 (Charge Sheet), dated 14 December 2001, states court-martial 
charges were preferred against him for:

	a.  Charge I, violation of Article 112a:

		(1)  specification 1:  wrongfully using marijuana between on or about 17 June 
2001 and 16 July 2001, and

		(2)  specification 2:  wrongfully possessing some amount of marijuana on 
3 November 2001;

	b.  Charge II, violation of Article 112, specification:  being drunk while on duty as the 
charge of quarters located at Building 7003A on or about 3 November 2001; and

	c.  Charge III, violation of Article 86:

		(1)  specification 1:  going from his appointed place of duty (CQ Duty) without 
authority on or about 2 November 2001, and

		(2)  specification 2:  failed to go to guard mount on 22 October 2001.

14.  On 14 December 2001, the applicant's company and battalion commanders 
recommended his trial by a special court-martial empowered to adjudge a bad conduct 
discharge.

15.  On 14 December 2001, the applicant consulted with counsel and was advised of 
his rights.  Following consultation with legal counsel, he voluntarily requested discharge 
in lieu of trial by court-martial under the provisions of Army Regulation 635-200, 
chapter 10.  He did not submit a statement in his own behalf.  He acknowledged:

*	he understood the elements of the offense(s) charged and was guilty of one or 
more of the charge(s) against him or of a lesser-included offense(s) therein 
contained which also authorized the imposition of a bad conduct or dishonorable 
discharge
*	he understood that if his discharge request were accepted, he could be 
discharged under conditions other than honorable
*	he could be deprived of many or all Army benefits and could be ineligible for 
many or all benefits administered by the Veterans Administration (properly known 
as the Department of Veterans Affairs)
*	he could be deprived of his rights and benefits as a veteran under both Federal 
and State laws
*	he may encounter substantial prejudice in civilian life because of a discharge 
under other than honorable conditions
*	he further understood that if he received a discharge which was less than 
honorable, he may apply to the Army Discharge Review Board and/or the 
ABCMR to upgrade his discharge
*	consideration by either board does not imply that his service characterization 
(discharge) would be upgraded

16.  On 18 December 2001, the applicant's company, battalion, and brigade 
commanders recommended approval of the applicant's request for discharge in lieu of 
trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and 
recommended issuance of a discharge under other than honorable conditions.

17.  On 19 December 2001, the separation authority approved the applicant's request 
for discharge in lieu of trial by court-martial under the provisions of Army Regulation  
635-200, chapter 10, and directed characterization of the applicant's service as under 
other than honorable conditions.  He dismissed the court-martial charges effective the 
day following the applicant’s discharge.

18.  On 28 December 2001, he was discharged in lieu of trial by court-martial under the 
provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 2 months, 
and 29 days of net active service during this period.  His service was characterized as 
under other than honorable conditions.  His DD Form 214 shows he was awarded or 
authorized the:

*	Army Service Ribbon
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and found insufficient evidence of error, 
injustice, or inequity.  The applicant had limited creditable service (did not complete first 
full term of service), no wartime service and no mitigating circumstances for the 
misconduct.  The Board further found limited evidence of other possible mitigating 
factors that may have resulted in consideration of a characterization upgrade on the 
grounds of clemency, for example, rehabilitation in the form of evidence of post-service 
honorable conduct.  The Board agreed that the applicant’s discharge characterization is 
appropriate for the misconduct.




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.


//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20190014978


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