ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 October 2020 DOCKET NUMBER: AR20190015196 APPLICANT REQUESTS: The applicant requests the upgrade of his general under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he is asking for this upgrade for employment purposes and because of medical issues, which he claims were incurred during his active duty service. The applicant contends, although he believed he was exceeding standards, he felt like he was continually being passed over for promotion. When he kept seeing his peers promoted, he asked his chain of command why; his leadership just said his promotion would be coming, but it never did. As a result of being passed over, the applicant became depressed and sought to self-medicate himself with marijuana. Ultimately, he failed a urinalysis test and was given extra duty; the extra duty put a strain on his marriage, and this only served to exacerbate his depression and his marijuana use. 3. The applicant's service records show: a. On 24 April 2001, the applicant enlisted into the Regular Army for 4 years; he was 20 years old. Following initial training, orders assigned him to Fort Lewis, WA, and he arrived on 11 October 2001. On some date prior to 6 November 2001, the applicant's chain of command promoted him to private (PV2)/E-2. 1 b. On 6 November 2001, the applicant participated in a unit urinalysis, and, on 21 November 2001, the results came back positive for THC (Tetrahydrocannabinol: the psycho-active ingredient in marijuana). c. On 5 December 2001, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for marijuana use, which was alleged to have occurred between 6 October and 6 November 2001; the imposing official reduced the applicant from PV2 to private (PV1)/E-1. d. On 3 January 2002, the applicant took another urinalysis test and the results again came back positive for THC. e. On 11 February 2002, the applicant underwent a separation physical; on a Standard Form 88 (Report of Medical Examination), the examining physician noted the applicant was abusing tobacco and had insomnia; however, the applicant was nonetheless qualified for separation. Also on 11 February 2002, the applicant completed an SF 93 (Report of Medical History), in which he indicated he had the following medical complaints: frequent or severe headaches; painful or "trick" shoulder or elbow; recurrent back pain; frequent trouble sleeping; depression or excessive worry; abuse of illegal drugs; and use of tobacco. In an entry reflected as the physician's summary, the examining physician noted the following: applicant unable to go to sleep and had been seen by a psychologist; applicant had depression; and the applicant had been using marijuana and was smoking 6 or 7 cigarettes a day. f. On 13 February 2002, the applicant again accepted NJP for using marijuana; the alleged time period was between 3 December 2001 and 3 January 2002. The applicant's punishment included reduction to PV1. g. On 25 February 2002, a clinical psychologist rendered a mental status evaluation for the applicant; he indicated the applicant was within normal limits for all evaluated areas and met the medical retention standard outlined in Army Regulation (AR) 40-501 (Standards of Medical Fitness). The clinical psychologist cleared the applicant for any administrative action deemed appropriate by the command. h. On 1 March 2002, the applicant's commander advised him, via memorandum, that he was recommending the applicant for discharge under paragraph 14-12c (2) (Commission of a Serious Offense – Abuse of Illegal Drugs), AR 625-200 (Personnel Separations – Enlisted Personnel); the commander's stated reason was the applicant's use of marijuana. i. On 4 March 2002, 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 and elected not to submit statements in his own behalf. j. On 7 March 2002, the separation authority approved the separation recommendation and directed the applicant's general discharge under honorable conditions per paragraph 14-12c (2), AR 635-200; on 2 April 2002, the applicant was discharged accordingly. The applicant's DD Form 214 shows he completed 11 months and 9 days of his 4-year enlistment contract; he was awarded or authorized the Army Service Ribbon. 4. The applicant argues he became depressed after seeing others promoted ahead of him, and his depression fueled his marijuana use, which, in turn, led to his general discharge. The evidence of record indicates the applicant arrived at his last duty assignment in October 2001, and, as November 2001 urinalysis test revealed, he had already been using marijuana within that same month of arrival; he tested positive a second time 2 months later (January 2002). a. During the applicant's era of service, commanders were to initiate separation action against Soldiers who had committed a serious military or civilian offense, and for which the Uniform Code of Military Justice (UCMJ) authorized a punitive discharge for the same or similar offense. A punitive discharge was among the authorized maximum punishments for violations of Article 112a (Wrongful Use, Possession, Manufacture or Introduction of Controlled Substances). Additionally, per paragraph 14-12c (2), abuse of illegal drugs was deemed serious misconduct. Commanders could use their discretion when contemplating the separation of a first-time offender below the grade of E-5; however, the regulation mandated the initiation of separation action for all second- time offenders. b. In reaching its determination, the Board can consider the applicant’s petition, her supporting evidence and assertions, and her service record in accordance with the published equity, injustice, or clemency guidance. 5. Based on the applicant's contention that his depression led his marijuana use and adverse discharge, the Army Review Board Agency medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in the Interactive Personnel Electronic Records Management System (iPERMS). The search in the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) did not reveal any records. 2. This applicant requests a discharge upgrade from General, Under Honorable Conditions to Honorable. He was separated under AR 635-200, Chapter 14 for use of marijuana (THC). The record showed the applicant had positive tests for THC on 06 November 2001, and 03 January 2002. He stated that he became depressed after seeing others promoted before himself. He contends that being unjustly “passed up” lead to his depression for which he began using marijuana to self-treat. The applicant first tested positive for THC on 06 November 2001 as a PV2 (promoted 24 October 2001) within his first year of enlistment and only 7 months from when he entered active duty. The record showed that the applicant was treated for depression during service, however, it is not clear when he was diagnosed. 3. The 13 April 2001 Report of Medical Exam (for enlistment) was silent for any behavioral health issues and the psychiatric exam was documented as normal. Although in the 11 February 2002 Report of Medical History (for chapter separation), the applicant divulged problems with sleep and that he was taking Zoloft for Depression, his psychiatric exam on the same date was normal. Likewise, the 25 February 2002 Mental Status Evaluation was negative for any worrisome psychological findings. The applicant was deemed mentally responsible for his behavior and was assessed to have had the mental capacity to distinguish right and wrong and to participate in separation proceedings. He was also cleared for any administrative actions deemed appropriate by command. 4. In regards to the applicant’s assertion that his depression was due to not being promoted and that this was the catalyst for his use of marijuana: A determination using cause and effect analysis is not possible since the onset of depression is not shown in available records. However, it is observed that the applicant appears to have been promoted at least from PVT to PV2 within the usual time frame; therefore the self- reported reason for depression is not completely congruent with known sequence of the events (the promotion preceded the THC positive test). The applicant’s depression is not considered mitigating for the offenses committed. Records do not show that the applicant was diagnosed with PTSD or TBI. In addition, during service, the applicant reported issues with headaches, a trick shoulder, and back pain for which evidence is insufficient to support that any were a cause of or significant contributing cause of the offenses which led to the applicant’s discharge. Therefore, based on available evidence for review, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. 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. 1. In applying standards of liberal consideration, the Board considered the applicant’s statement that his misconduct was caused by depression, which was caused by seeing his peers being promoted ahead of him. However, the record indicates he was promoted before his misconduct occurred. Furthermore, the Medical Review indicates that depression is not a mitigating factor for the misconduct. The Board agrees with the Medical Review that there is insufficient evidence to support any mitigating medical or behavioral health conditions for the misconduct that led to the applicant’s discharge. 2. In applying standards of clemency, the Board found limited evidence of creditable service in that the applicant did not complete his enlistment. Furthermore, the applicant had no wartime service, remorse, valorous awards, or post-service honorable conduct that might have mitigated the discharge characterization that resulted from his misconduct. The Board agreed that the applicant’s discharge characterization as reflected on his DD Form 214 is appropriate. 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. 11/27/2020 X CHAIRPERSON 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated 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 consider 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 consider as the governing factor. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Commanders were required to initiate separation action when they determined a Soldier had committed serious misconduct, and could clearly establish 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, 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 all second-time offenders. 3. The Manual for Courts-Martial, United States, Appendix 12 (Maximum Punishments Chart), in effect at the time, showed punitive discharges as available maximum punishments for violations of Article 112a (Wrongful Use of Marijuana), UCMJ. 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. 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//