IN THE CASE OF: BOARD DATE: 24 September 2021 DOCKET NUMBER: AR20200009588 APPLICANT REQUESTS: * Upgrade of his general discharge under honorable conditions * Correction of his Iowa Army National Guard Current Annual Statement to show staff sergeant (SSG)/E-6 as his highest grade held APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Tab A – National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Tab B – NGB Form 23B (Army National Guard (ARNG) Current Annual Statement) * Tab C – Army Discharge Review Board (ADRB) Case Report and Directive for Docket Number AR20080018618 * Tab D – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Tab E – DA Form 2-1 (Personnel Qualification Record – Part II) * Tab F – Evaluation documents and awards orders/memoranda: * DA Form 2166-5 (Enlisted Evaluation Report) * U.S. Army Enlisted Evaluation Center (USAEEC) Form 10 (Enlisted Evaluation Data Report) * DA Form 1059 (Service School Academic Report) * Four DA Forms 2166-6 (Enlisted Evaluation Report) * Six DA Forms 2166-7 Noncommissioned Officer Evaluation Report (NCOER)) * Five awards memoranda * Two Permanent Orders (PO) * Tab G – Letter of support * Tab H – Four membership identification cards, picture of applicant's father and applicant, and Honor Flight itinerary * Tab I – Iowa Army National Guard (IAARNG) memorandum, Subject: Denial of changing discharge characterization * Tab J – IAARNG letter regarding denial of applicant's reconsideration request 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 interests of justice to excuse the applicant's failure to timely file. 2. Counsel states the following: a. Procedural History and Exhaustion of Remedies. (1) On 26 August 2009, the ADRB reviewed the applicant's case and denied relief; counsel asserts the ADRB did not properly consider equity as a basis for relief and failed to account for the applicant's inability to rebut missing documents. (2) The applicant then appealed to The Adjutant General (TAG), IAARNG, and, on 20 November 2015, TAG IAARNG denied the applicant's requested relief, giving very little by way of explanation. (3) In the applicant's earlier application to the Board (ABCMR Docket Number AR20170002462), the Board refused to consider the applicant's petition because of a perceived failure to exhaust. As a result, the applicant reapplied to TAG, IAARNG, and, on 28 July 2020, TAG IAARNG responded by refusing to reconsider the applicant's case; TAG IAARNG referred the applicant back to the ABCMR. (4) At present, no reviewing authority has performed a proper assessment of the inequity inherent in the applicant's inability to rebut missing documents. b. Background. (1) On 26 August 1977, the applicant enlisted into the Regular Army; on 25 August 1980, he honorably separated after completing his service obligation. On 27 December 1982, the applicant enlisted into the IAARNG, and, effective 21 March 1990, the IAARNG promoted him to SSG. (2) On 1 May 1997, the applicant voluntarily agreed to a reduction to sergeant (SGT)/E-5 so he could accept a specific job; his date of rank reverted to the date on which the IAARNG had originally promoted him to SGT (18 February 1983). (3) On 21 August 2002, the IAARNG separated the applicant after he had completed over 25 years of combined active and Reserve Component (RC) service. The IAARNG issued the applicant a general discharge under honorable conditions based on first-time drug use. The separation authority was National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 8-26e (2) (a) (Acts or Patterns of Misconduct), and the reentry (RE) code was "RE-3" (waiver required for reenlistment). Apart from this single, isolated incidence of misconduct late in his career, the quality of applicant's service record was otherwise outstanding. (4) Following his separation from the IAARNG, the applicant has lived an exemplary civilian life; he worked full-time as a forklift operator until he retired in 2014 due to disability, and he has had no recurring issues with drug use or addiction. c. Arguments. (1) The applicant requests this upgrade because he wishes to have the entirety of his IAARNG career reflected. Counsel cites Department of Defense Instruction 1332.30 (Commissioned Officer Administrative Separations) to provide the criteria for awarding an honorable character of service and asserts, in effect, the applicant's isolated incidence of misconduct should not overshadow the applicant's more than 20 years of excellent service. (2) Most of the applicant's separation documentation is missing, incomplete, or inaccurate. Specifically, the applicant never consulted legal counsel because his unit advised him not to, telling the applicant "they always separate Soldiers for drug use." The fact that key documents are missing means the applicant cannot properly contest the propriety of his discharge; for this reason alone, and as a matter of equity, the Board should find it has sufficient basis to upgrade the applicant's character of service. (3) The applicant's post-service conduct further confirms his use of marijuana was a single and isolated event; in the more than 14 years since his discharge, the applicant has not been in any trouble, not even a traffic ticket, and he regularly volunteers as a way of giving back to his community. Counsel contends the Board should consider the applicant's post-service conduct from the perspective that his commitment to service has remained strong even after leaving the National Guard. (4) With regard to the highest grade the applicant held, counsel points out the applicant served as a SSG from 21 March 1990 until 1 May 1997, when he voluntarily relinquished the rank; counsel asserts, "The applicant was never subsequently reduced." 3. Counsel provides documents from the applicant's military personnel record, the ADRB's review of the applicant's case, and IAARNG's responses to the applicant's requests for an upgrade. In addition, the applicant submits the following: * a letter of support from the assistant director of a local homeless shelter, in which the assistant director describes the applicant has a "good example of someone who really gives back" * identification cards reflecting the applicant's membership in various civilian associations, and * a picture and itinerary pertaining to the "Honor Flight" in which the applicant and his father participated 4. The applicant's service records show: a. On 26 August 1977, the applicant enlisted into the Regular Army for 3 years; on 25 August 1980, orders honorably released the applicant from active duty and transferred him to the U.S. Army Reserve (USAR) Control Group (Reinforcement). The applicant's DD Form 214 shows he completed 3 years of net active duty service, and he held the rank/grade of SGT/E-5. The report additionally indicates the applicant was awarded or authorized the Army Good Conduct Medal (1st Award), Air Assault Badge, and three marksmanship qualification badges. b. On 27 December 1982, the applicant enlisted into the IAARNG as a specialist four (SP4)/E-4. Effective 18 February 1983, the IAARNG promoted the applicant to SGT/E-5. b. IAARNG orders, dated 25 February 1983, ordered the applicant to active duty in an Active Guard/Reserve (AGR) status, effective 23 February 1983; on 30 November 1983, orders honorably released the applicant from active duty, based on the applicant's completion of his AGR term. c. In June 1985, the applicant requested the IAARNG release him so he could conduct an interstate transfer to the Illinois ARNG; the IAARNG subsequently approved the applicant's request and issued orders and an NGB Form 22 reflecting the applicant's transfer, effective 9 September 1985. d. In or around October 1987, the applicant requested an interstate transfer back to the IAARNG; on 5 November 1987, the applicant signed an NGB Form 22-5-R (Approval and Acceptance by Service Representative for Interstate Transfer in the ARNG), in which he acknowledged his voluntary transfer back into the IAARNG. e. IAARNG orders, dated 26 March 1990, promoted the applicant to SSG/E-6, effective 21 March 1990. f. IAARNG Orders Number 191-015, dated 1 October 1996, transferred the applicant to the Inactive ARNG (ING); IAARNG Orders Number 094-193, dated 15 May 1997, transferred the applicant from the ING back to his IAARNG unit, effective 1 May 1997 (neither orders are available for review). Additionally, the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows, effective 1 May 1997, the applicant's rank had changed from SSG/E-6 to SGT/E-5 (the applicant's service record is void of documentation explaining this reduction). g. An IAARNG memorandum, dated 25 April 2000, Subject: Notification of Eligibility for Retired Pay at Age 60, advised the applicant he had completed the required years of service to be eligible for retired pay at age 60. h. The applicant's available service record does not contain his separation packet; however, the applicant previously provided the below-listed documents as evidence for the ADRB's consideration: (1) DA Form 4856 (General Counseling Form), prepared in or around March 2002, wherein the applicant's IAARNG leadership advised the applicant he had tested positive for a controlled substance on a urinalysis test conducted on 2 February 2002. (2) On 9 March 2002, (according to applicant's counsel) the applicant completed a memorandum, Subject: Request for Conditional Waiver Separation under AR (Army Regulation) 135-178 (ARNG and Army Reserve – Enlisted Administrative Separations), Chapter 12 (Misconduct). On the form, the applicant indicated he had elected not to submit statements in his own behalf, and waived his right to counsel and his right to appear personally before an administrative separation board. The document is missing the applicant's signature. (3) On 20 March 2002, the applicant's IAARNG commander requested the separation authority issue the applicant a general discharge, in accordance with AR 135-178, paragraph 12-1d (Misconduct – Abuse of Illegal Drugs); the commander stated, on 2 February 2002, the applicant had tested positive for THC (Tetrahydrocannabinol; the principal psychoactive ingredient in marijuana). The commander additionally requested the initiation of Uniform Code of Military Justice (UCMJ) action against the applicant for his illegal drug use. (4) On 20 August 2002, the applicant accepted nonjudicial punishment (NJP), under the provisions of chapter 29B, Iowa Code. The imposing commander charged the applicant with violating the Iowa Code of Military Justice (ICMJ) by testing positive for THC; the imposing commander's punishment was reduction from SGT to specialist (SPC)/E-4. The applicant elected not to file an appeal. (5) On 10 September 2002, the separation authority approved the commander's separation recommendation. i. The applicant's service record includes his separation orders and NGB Form 22: (1) IAARNG orders, dated 4 October 2002, reflect the applicant's reduction in rank from SGT to SPC, effective 20 August 2002, and his general discharge from the IAARNG, effective 21 August 2002. (2) The applicant's NGB Form 22 shows, between 27 December 1982 and 21 August 2002, the applicant completed 19 years, 7 months, and 25 days of net IAARNG service; he additionally served 2 years, 4 months, and 12 days of prior RC service, and 3 years of prior active Federal service. The applicant's total service for retired pay purposes was 22 years and 11 days. The report additionally listed the following: (a) Item 15 (Decorations, Medal, Badges, Commendations, Citations, and Campaign Ribbons Awarded): * Army Good Conduct Medal (1st Award) * Army RC Achievement Medal (4th Award) * Army Service Ribbon * National Defense Service Medal * Armed Forces Reserve Medal * NCO Professional Development Ribbon with Numeral "2" * Army RC Overseas Training Ribbon * Air Assault Badge * Iowa Meritorious Service Medal * Iowa Commendation Medal * Iowa State Service Ribbon (3rd Award) (b) Item 23 (Authority and Reason): "FIRST TIME DRUG OFFENDER//GENERAL DISCHARGE"; NGR 600-200, paragraph 8-26e (2) (a) (Acts or Patterns of Misconduct). (c) Item 24 (Character of Service): Under Honorable Condition. (d) Item 26 (Reenlistment Eligibility): "RE-3." j. On 15 October 2008, the applicant requested a personal appearance, with counsel, before the ADRB. The applicant's requested relief consisted of: asking the ADRB to upgrade his character of service to honorable, restoring his E-5 paygrade, changing his reenlistment eligibility code to "RE-1," awarding back pay and other compensation, removing adverse material from his NGB Form 22 and official military personnel file (OMPF), and returning him duty. (1) Through counsel, the applicant argued the IAARNG had based the applicant's separation on an isolated and entirely inconsistent act of misconduct; in addition, the IAARNG did not give the applicant an opportunity to rehabilitate. Counsel recounted the applicant's military history and described the applicant's awards and accomplishments. In addition, counsel offered details of the applicant's separation process and contended the ADRB should find the length and quality of the applicant's service was sufficient to mitigate his one-time failure of a urinalysis test. Counsel contended, as a matter of equity, the ADRB should grant the applicant an honorable character of service. (2) On 24 August 2009, the applicant personally appeared, with counsel, before the ADRB; after hearing testimony and reviewing the applicant's evidence and military service record, the ADRB voted to deny relief. k. On 12 January 2017, the application petitioned the ABCMR, making essentially the same arguments submitted with his current application. On 10 June 2019, the Army Review Boards Agency administratively closed the applicant's request, stating the applicant had not submitted proof the IAARNG had previously denied the applicant's request for relief. 5. The absence of the applicant's separation packet means we are unable to determine all of the circumstance(s) that led to his discharge. However, because his service records contain his NGB Form 22, which lists the regulatory basis for his separation and affirms his under honorable conditions discharge, the Board presumes that the applicant's leadership completed his separation properly. a. Per AR 15-185 (ABMCR), the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. The Board is not an investigative body, and the applicant bears the burden of providing a preponderance of evidence to support claims of inequity and/or injustice. b. The foregoing presumption notwithstanding, the absence of the applicant's separation packet represents an administrative irregularity; the version of AR 600-8-104 (Military Personnel Information Management/Records) in effect at the time (which was also applicable to the ARNG) required supporting documents for approved separation actions to be maintained in the affected Soldiers' OMPF. c. During the applicant's era of service, commanders were required to initiate separation action against first-time drug offenders in the rank of SGT through sergeant major (SGM). (1) For ARNG Soldiers, commanders applied the provisions of NGR 600-200, paragraph 8-26q (later changed to paragraph 8-26e (2) (a)); the regulation required commanders to refer abusers of illegal drugs to treatment and/or counseling services, regardless of the commander's intent to pursue administrative, nonjudicial, or judicial actions. The regulation further directed commanders to process Soldiers for discharge using chapter 7 (subsequently changed to chapter 12), AR 135-178. (2) AR 135-178 prescribed policies and procedures for the administrative separation of ARNG and USAR enlisted personnel. Chapter 12, paragraph 12-1d (Abuse of Illegal Drugs) stated the Army considered the abuse of illegal drugs as serious misconduct and, as with paragraph 8-26q in NGR 600-200, required commanders to process for discharge all Soldiers, SGT through SGM, who were identified as first-time drug offenders. c. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 6. Concerning the applicant's request to correct his NGB Form 23A (Army National Guard Current Annual Statement), the applicant seeks to show SSG/E-6 as his highest grade held. a. According to NGR 680-2 (Automated Retirement Points Accounting Management), currently in effect, the "Highest Grade Held" entry on the NGB Form 23A is based on the highest grade an ARNG Soldier held satisfactorily and is used in determining the grade at which retired pay will be calculated. b. AR 15-80 (Army Grade Determination Review Board and Grade Determinations),currently in effect, states service in the highest grade, or an intermediate grade, is normally considered unsatisfactory when reversion to a lower grade resulted from misconduct or nonjudicial punishment pursuant to Article 15, UCMJ. If service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held. c. AR 135-180 (Retirement for Non-Regular Service), currently in effect, states, for a Soldier who entered service before 8 September 1980, that Soldier's retired pay is based on the highest grade held satisfactorily at any time in the Armed Forces. BOARD DISCUSSION: 1. Board members noted the applicant argues the Board should grant him an honorable discharge because his misconduct was an isolated, one-time event; in addition, the fact that most of the documents from his separation are either missing, incomplete, or inaccurate, he maintains his case warrants an upgrade as a matter of equity. The applicant points to his post-service conduct, contending he has not been in any trouble and regularly volunteers to give back to his community. a. The absence of the applicant's separation packet means the Board is unable to determine all of the circumstance(s) that led to his discharge. However, because his service records contain his NGB Form 22, which lists the regulatory basis for his separation and affirms his under honorable conditions discharge, the Board presumes that the applicant's leadership completed his separation properly. b. The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. 2. The applicant satisfactorily held the grade of E-5 while serving in, and later honorably released from active duty. He held the grade of E-6, from 21 March 1990 until his return from ING status, on 1 May 1997; however, his service record offers no insight into why the applicant was reduced (i.e. whether the reduction was administrative or based on misconduct). Counsel asserts the reduction from SSG to SGT was voluntary and resulted from the applicant's acceptance of an E-5 position. Board members found insufficient evidence to support that position and voted to deny relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX: 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. 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 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. NGR 600-200, in effect at the time, stated, in paragraph 8-26q (later changed to paragraph 8-26e (2) (a)) that this paragraph included Misconduct – Abuse of Illegal Drugs, and the paragraph required commanders to refer abusers of illegal drugs to treatment and/or counseling services, regardless of the commander's intent to pursue administrative, nonjudicial, or judicial actions. The regulation additionally directed commanders to process Soldiers for discharge using chapter 7 (Misconduct), AR 135-178 (later changed to chapter 12), and mandated that all Soldiers identified as first-time drug offenders (grades SGT through SGM) have discharge proceedings initiated against them. 3. AR 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), in effect at the time, set policies and procedures for the administrative separation of enlisted Army National Guard and USAR Soldiers. a. Paragraph 2-9a (Honorable). An honorable characterization was appropriate when the quality of the Soldier's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious- that any other characterization would be clearly inappropriate. When a Soldier was discharged before expiration of the service obligation for a reason for which an honorable characterization was discretionary, the following considerations apply: (1) Where there were infractions of discipline, separation authorities needed to consider the extent thereof, as well as the seriousness of the offense(s). (2) A Soldier was not necessarily denied an honorable characterization solely due to a specific number of convictions by court-martial or actions under the UCMJ Art 15. An honorable characterization could still be awarded when disqualifying entries in the Soldier's military record were outweighed by subsequent honorable and faithful service over a greater period during the current term of service. It is a pattern of behavior and not an isolated instance that were to be considered the governing factor in determining the character of service. (3) Unless otherwise ineligible, a Soldier could receive an honorable characterization of service if he or she had, during his or her current enlistment, or any extension thereof, received a personal decoration. b. Chapter 12, paragraph 12-1d (Abuse of Illegal Drugs) stated commanders could separate Soldiers for the commission of a serious military or civilian offense if a punitive discharge was an authorized punishment for the same or closely related offense in the Manual for Courts-Martial. This paragraph stated the Army considered the abuse of illegal drugs as serious misconduct and, as with paragraph 8-26q in NGR 600-200, required commanders to process for discharge all Soldiers, holding grades of SGT through SGM, who had been identified as first-time drug offenders. 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, 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. 5. AR 600-8-104 (Military Personnel Information Management/Records), in effect at the time, required supporting documents for approved separation actions to be maintained in the affected Soldiers' official military personnel file. 6. AR 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which means the Board presumes what the Army did was correct. The Board is not an investigative body, and the applicant bears the burden of providing a preponderance of evidence to support claims of inequity and/or injustice. 7. NGR 680-2 (Automated Retirement Points Accounting Management), currently in effect, states the "Highest Grade Held" entry on the NGB Form 23A is based on the highest grade an ARNG held satisfactorily and is used when determining the grade at which retired pay will be calculated. 8. AR 15-80 (Army Grade Determination Review Board and Grade Determinations),currently in effect, states service in the highest grade, or an intermediate grade, is normally considered unsatisfactory when reversion to a lower grade resulted from misconduct or nonjudicial punishment pursuant to Article 15, UCMJ. If service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held. 9. AR 135-180 (Retirement for Non-Regular Service), currently in effect, states, for a Soldier who entered service before 8 September 1980, that Soldier's retired pay is based on the highest grade held satisfactorily at any time in the Armed Forces. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200009588 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200009588 11 ABCMR Record of Proceedings (cont) AR20200009588 10