ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 14 July 2021 DOCKET NUMBER: AR20200002846 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a narrative reason for separation consistent with his "Completed Enlistment." 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), dated 11 December 2019 * Orders to the Special Warfare Center * Special Warfare Center Graduation Certificate, dated 17 November 1995 * DD Form 214, for the period ending 19 July 2006 (upgraded and reissued 5 May 2009) 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 (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: a. He feels that the current information on his DD Form 214 has served its intended purpose and the DD Form 214, as it is currently written, has hindered his chances for getting a job as an operations planner with the military. That job would allow him to work at a computer that accommodates his multiple disabilities. He was very successful in the military and feels he can give something back to the military with his knowledge. Without the change of the DD Form 214, he cannot get this job. b. Additionally, he requests a change in the narrative reason for separation shown on his DD Form 214, to "something more pleasant" than what is currently shown (Misconduct (Drug Abuse)). The basis for that reason was his use of tetrahydrocannabinol (THC). Those were hard times and he was dealing with a lot of pain, both physically and emotionally. The drug use helped at the time but cost him his job. He regrets it dearly but feels he has done his time for that. He no longer practices that habit and is trying to get things back on track. 3. The applicant enlisted in the Regular Army 9 October 1992. He reenlisted in the Regular Army on 17 June 1996, 22 June 1998, and 23 June 2003. He was promoted to the rank/grade of sergeant first class/E-7 on 1 August 2003. 4. The applicant's command was notified on 20 October 2005 that the applicant had tested positive for THC. 5. The applicant received a negative counseling on 4 November 2005 for misusing his government travel card. 6. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: * on 30 November 2005, for wrongfully using marijuana, between on or about on or about 23 January 2005 and 23 February 2005, at or near Fort Bragg, NC * on 14 December 2005, for violating a lawful general regulation, by using a government credit card for personal use, between on or about 1 October 2005 and 20 October 2005 7. The applicant's unit commander notified the applicant on 28 December 2005 of his intent to initiate actions to separate the applicant from service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of his commission of a serious offense. 8. The applicant acknowledged the proposed separation action on 9 January 2006 and requested consideration of his case and personal appearance before an administrative separation board. 9. The applicant's company commander formally recommended the applicant's separation from service on 23 January 2006, under the provisions of Army Regulation 635-200, paragraph 14-12c. 10. The applicant's battalion commander concurred with the company commander's recommendation on 23 January 2006. He strongly recommended the applicant be discharged from the U.S. Army and issued a DD Form 794A (Under Other Than Honorable Conditions (UOTHC) Discharge Certificate). He stated that the applicant did not have the potential for full mobilization and should not be transferred into the Individual Ready Reserve to fulfill his statutory service obligation. He requested the requirement for a rehabilitative transfer be waived. 11. A Womack Army Medical Center Alcohol Support and Prevention Center (ASPC) counselor reported that the applicant did not meet the criteria for admission in the ASPC program, as there was no drug or alcohol problem. The circumstances of the positive urinalysis indicated that he most likely had been given cannabis through a food or drink without his knowledge. It was recommended the applicant be retained. 12. An Administrative Separation Board was appointed on 15 May 2006 and the applicant was notified on 19 May 2006 that a Board of Officers would hold a hearing to determine whether he should be separated from the service before the expiration of his term of service. 13. The applicant, with counsel, appeared before a Separation Board of Officers on 7 June 2006. a. The board found that the allegations of misconduct (wrongful use of a controlled substance, on or about on or about 23 January 2005 and 23 February 2005) was supported by a preponderance of the evidence, and the applicant's conduct warranted separation. The board recommended the applicant be discharged from the service due to misconduct and that the recommended separation be suspended until 7 June 2007. The recommendation for suspension was based on the applicant's exceptional past performance. The board further recommended that the applicant be issued a UOTHC discharge should the suspension be revoked. b. During the hearing, the applicant raised the possibility of inadvertent consumption of a product containing THC through some food product, with an admission from his stepson that he had laced his stepfather's food with marijuana. 14. The U.S. Army Civil Affairs and Psychological Operations Command (Airborne) (USACAPOC), Fort Bragg, NC Staff Judge Advocate conducted a review of the Separation Boards proceedings, on 22 June 2006, and found no fatal flaws. 15. The separation authority approved the findings of the Separation Boards but denied the suspension of the applicant's discharge on 23 June 2006. The separation authority approved the recommended discharge, waived further counseling and rehabilitation efforts, and directed that the applicant be issued an under other than honorable discharge. 16. The applicant was discharged on 19 July 2006, under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). The DD Form 214 he was issued confirms his service was characterized as UOTHC. 17. The applicant's Enlisted Record Brief shows he was awarded or authorized the Meritorious Service Medal, Army Commendation Medal (6th Award), Army Achievement Medal (4th Award), Army Good Conduct Medal (4th Award), Humanitarian Service Medal, and the Army Superior Unit Achievement Award. 18. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his service characterization. The ADRB considered his request on 1 May 2009 and granted partial relief, by upgrading his service characterization to under honorable conditions (general), based on its determination that the characterization of service was too harsh considering his length and quality of service, to include his combat service and, as a result, was inequitable. The Board also noted that the upgrade action entailed restoration to the grade of E-7/SFC. A revised DD Form 214 was issued at that time showing his upgraded characterization of service. 19. The Board should consider the applicant's earlier periods of honorable active service, his awards, and his statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined relief was not warranted. 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 considered the upgrade by the ADRB. The Board found insufficient evidence of mitigation for the misconduct. Based upon a preponderance of evidence, the Board determined that the applicant’s characterization of service and/or narrative reason for separation is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. 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. 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 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 15-185 (ABCMR) prescribes the policies and procedu for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. 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. Use of illegal drugs as serious misconduct; however, by recognizing that relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, Boards 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. 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//