IN THE CASE OF:  BOARD DATE:  29 September 2020 DOCKET NUMBER:  AR20200005967 


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge or Dismissal from theArmed Forces of the United States), dated 18 October 2019

.two character reference letters, dated 7 February 2018



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, U.S.Code (USC), Section 1552 (b); however, the Army Board for Correction of MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he has attended rehabilitation programs since being out of theArmy and has spent the last ten years reflecting on the decision he made.

3.The applicant accepted non-judicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice (UCMJ), on the following dates:

.on 14 October 2008, for failing to go at the time prescribed to his appointed placeof duty, on or about 28 April 2008, 11 June 2008, 4 August 2008, 6 August 2008,8 September 2008, and 24 September 2008

.29 January 2009, for wrongfully using marijuana, between on or about19 November and 19 December 2008



4.A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 May 2009, showsthe applicant was evaluated by a psychiatrist and was cleared for any administrativeaction deemed appropriate by command.

5.The applicant's immediate commander notified the applicant on 29 May 2009 of hisintent to initiate separation actions against him under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, formisconduct – commission of a serious offense.

6.The applicant acknowledged on 10 June 2009 he had been given the opportunity toconsult with counsel, and was advised of the basis for the contemplated actions toseparate him and of the rights available to him.  He elected to submit a statement in hisown behalf; however, his statement is not available for review.

7.The applicant's immediate commander formally recommended his separation fromservice under the provisions of Army Regulation 635-200, Chapter 14, by reason ofmisconduct.  The separation authority approved the recommended action on 11 June2009 and directed the issuance of a general (under honorable conditions) discharge.

8.The applicant was discharged on 17 July 2009.  His DD Form 214 (Certificate ofRelease or Discharge from Active Duty) confirms he was discharged under theprovisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct(drug abuse).  His service was characterized as under honorable conditions (general).

9.The applicant applied to the Army Discharge Review Board (ADRB) for an upgradeof his discharge.  The ADRB considered his request on 14 October 2014, determinedhis discharge was both proper and equitable, and denied his request.

10.The applicant provides two character reference letters attesting to his potential,self-discipline, professionalism, and participation in Narcotics Anonymous/AlcoholicsAnonymous meetings.

11.The Board should consider the applicant's overall record and statement inaccordance with the published equity, injustice, or clemency determination guidance.


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. 2.Regarding clemency, the Board considered the applicant's post-service conduct andrehabilitative efforts, but found the evidence provided insufficient to render a clemencydetermination.  Post-service conduct alone is not normally a basis for changing acharacterization of service.  The preponderance of evidence indicates that the applicanthad no wartime service, limited creditable service (did not complete his term ofenlistment), had no meritorious personal awards and no other sufficient evidence of
mitigating circumstances for the misconduct that might warrant an upgrade for clemency reasons. 

2.Regarding liberal consideration, the record is void of, and the applicant did notprovide, matters for consideration that might have mitigated the misconduct.

3.Therefore, the Board agreed that the applicant’s discharge characterization isappropriate.


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel:

a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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.Paragraph 3-7b provides that a general discharge is a separation from the Armyunder honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 14 of this regulation establishes policy and prescribes procedures forseparating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions (UOTHC) is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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//