IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210009057 APPLICANT REQUESTS: reconsideration of his previous request that his under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or an honorable discharge. 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), undated * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), undated * Two U.S. Army Criminal Investigation Command (CID) Forms 94-E (Agent’s Investigative Report), dated 2 May 2002 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080015002 on 10 March 2009. 2. The applicant states he was on guard duty with another Soldier when they were notified that the medical supplies (Tylox) needed to be picked up, per medical order. Later, after a thorough investigation, it was determined that a Soldier who relieved them had taken the Tylox, which that Soldier had confessed to. The applicant's records do not have a polygraph test that shows an investigation was passed before the urinalysis. He was told representation was unable to reach Bagram, and he was forced to comply with a urinalysis, after the investigation cleared him in the theft of Tylox tablets. 3. The applicant enlisted in the Regular Army on 18 February 2000. 4. A DD Form 2624 (Specimen Custody Document-Drug Testing), dated 2 February 2001, shows the applicant tested positive for Tetrahydrocannabinol (THC) during a unit urinalysis test conducted on 11 January 2001. 5. The applicant accepted non-judicial punishment on 5 March 2001, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana, between on or about 11 December 2000 and on or about 11 January 2001. His punishment included his reduction to private/E-1, forfeiture of $482.00 pay per month for two months, extra duty for 45 days, and restriction for 45 days. 6. A report to suspend favorable personal actions (FLAG) was initiated on the applicant on 7 May 2001, for adverse action. 7. The applicant served in Afghanistan from 10 January 2002 through 10 May 2002, in support of Operation Enduring Freedom. He was assigned to 511th Military Police (MP) Company. 8. A DD Form 2624 (Specimen Custody Document-Drug Testing) shows the applicant tested positive for THC during a unit urinalysis test conducted on 21 April 2002. A Standard Form (SF) 557 shows the applicant had a weak pass of THC on his urine drug screen. 9. A DA Form 2823 (Sworn Statement), dated 30 April 2002, shows the applicant admitted to testing positive for marijuana during February 2001. He admitted to using marijuana and hashish since then, while at home in Baltimore and at Fort Drum. He probably used marijuana about a dozen times since he tested positive in 2001. He used hashish one time after he got to Afghanistan. He wanted to see if it was like marijuana and got it from a Soldier who was walking down the road at Fort Drum. 10. A memorandum for record, dated 30 May 2002, notes the applicant completed the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and passed without incident; however, his record is void of documentation that corroborates this. 11. The applicant was formally counseled on 30 May 2002, for wrongfully using hashish. He was informed that separation actions would be initiated. 12. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the UCMJ, on the following dates: * on 4 June 2002, for wrongfully using hashish at an unknown location between on or about 21 March 2002 and on or about 21 April 2003 * on 4 June 2002, for wrongfully using hashish at an unknown location, between on or about 20 February 2002 and on or about 20 March 2002 13. A report to suspend favorable personal actions (FLAG) was initiated on the applicant on 4 June 2002, for elimination. 14. The applicant underwent a mental status evaluation on 6 June 2002. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, was fully alert and oriented, and had clear thought process and normal thought content. The evaluating physician determined he had the mental capacity to understand and participate in any administrative proceedings and he was psychiatrically cleared for any administrative action deemed appropriate by his Command. The applicant was given a diagnosis of cannabis abuse. 15. The applicant's commander notified the applicant on 12 June 2002 of his intent to initiate actions to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct. The specific reasons for this proposed action are as follows: Between on or about 21 March 2002 and on or about 21 April 2002, he wrongfully used hashish. Between on or about 20 February 2002 and on or about 20 March 2002, he wrongfully used hashish. These violations resulted in a Field Grade Article 15. Between on or about 11 December 2000 and on or about 11 January 2001, he wrongfully used marijuana. This violation resulted in a Field Grade Article 15. The immediate commander also informed him that he was recommending a characterization of service of Under Other than Honorable conditions. 16. The applicant consulted with counsel on 13 June 2002 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He had less than six years and was not entitled to have his case considered by an administrative board, or a personal appearance before a board. He was advised he could to submit statements in his own behalf, in which he stated: a. He should be awarded am honorable discharge from the Army. He never gave his noncommissioned officers (NCO) any problems. He showed up for duty on time, in the correct uniform, and always took the initiative in his work habits. When his NCOs needed something done, they knew they could count on him to get the job done right. The Army taught him a lot about being professional and respectful toward his superiors and fellow Soldiers. He would like to go out into the civilian world and show all the good things versus the bad that he has done in the Army. He knew he can be a productive member of society. b. He understands what he did was wrong; he is not trying to deny that it was not. He has been researching his past situation in February of last year when he came up positive for substance abuse. He was not put into drug abuse program nor was he even referred to one. Therefore, he feels that if he was afforded the chance to attend a rehabilitative program, he could have prevented the situation he is in now. All it would have taken is for him to receive the help he truly needed. c. He did extra duty for his first offense and shortly thereafter he requested to go to West Point. When he denied having stolen narcotics, he was searched and blatantly treated like a criminal because of his first offense. The unfair treatment took away his rights of being innocent until proven guilty, which led to the admittance of his marijuana use. Again, he honestly believes that this could have been prevented had he had some help. The thing that bothered him the most about this was he was made fun of and called names on an email sent from Afghanistan to Fort Drum. He admitted to the problem. d. During the two years he has been in the Army, he has kept himself in good physical condition and his rifle qualifications has been sharp shooter. He has completed field sanitation courses. He has completed the serve safe class. He has also completed the drivers training course for the 5-ton vehicle. On numerous occasions he has received coins for his exemplary duty performance. e. Before a decision is made he would like to add that the Army has helped him in many ways. And in return he has worked very hard to earn the respect of his peers and trust of his superiors. Therefore, he prays that he be given a chance to finish his enlistment term or be honorably discharged from the Army. There have been many Soldiers in the military that have had the same problems such as himself. For those who have, he prays that they received help for their problem such as being referred to a substance abuse program. He does not want any other Soldier to have to go through the same thing he did and not receive the necessary help to overcome this illness. 18. The applicant's separation documentation includes an undated character-reference letter, written by Sergeant HWP, who states: a. The applicant should not get a dishonorable discharge. In the time that he was his direct supervisor, which was about a year. The applicant showed excellent motivation and dedication to his job and physical training (PT). He was always on time, and willing to learn and teach his peers. The applicant had never been in any trouble, other than his drug problem. He was recently again his direct supervisor in their deployment to Operation Enduring Freedom. In all honesty, the applicant is one of the few Soldiers that he would chose to be a valuable part of his team in a war time situation as they were in Bagram, Afghanistan. b. The applicant never complained or groaned, continuously working hard along- side all the other cooks to make sure that over 6, 000 troops were provided two hot nutritious meals for over four months straight. Also he pulled his two of four hours of guard duty on top of his regular duties. He put the applicant’s overall performance as outstanding in his opinion. He is not condoning his past or recent offences; however, he strongly feels that the applicant need help. A dishonorable discharge will continue to hurt and haunt this Soldier for the rest of his life. All he asks is the separation authority considers all of the applicant’s actions while serving in the Army when making the decision. 18. The applicant's commander formally recommended the applicant's separation from service, under the provisions of Army Regulation 635-200, paragraph 14-12c, and further recommended he receive a UOTHC discharge. 19. The separation authority approved the applicant's discharge on 25 June 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed that his service be characterized as under honorable conditions (general). 20. The applicant was discharged on 28 June 2002. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. The DD Form 214 he was issued confirms his service was characterized as UOTHC. He was credited with completing two years, four months, and 11 days of creditable service. He did not complete first full term of service. 21. The applicant records contain DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 23 October 2003, which amended his DD Form 214 by adding to item 18 (Remarks) an entry showing his deployment to Afghanistan from 20020110 through 20020510. 22. The applicant petitioned the ABCMR for an upgrade to his service characterization. The ABCMR considered his request on 10 March 2009, determined he was properly discharged, and denied his request for relief 23. The applicant provides extracts of a CID Agent’s investigative report, dated 2 May 2002, which shows the applicant's urine sample was obtained pursuant to a Command directed urinalysis in conjunction with an ongoing investigation into the theft of Tylox tablets, a scheduled II drug. The applicant's urine sample determined that it did not contain any trace elements of opiates (TYLOX); however, the sample did contain elements of THC, which is the active ingredient in marijuana and hashish. 24. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The applicant provided insufficient evidence of post-service achievements in support of a clemency determination. 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. 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. 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 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKK" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c (2) by reason of misconduct (serious offense). 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. c. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. 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 (BCM/NR) on 25 July 2018, 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. 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// ABCMR Record of Proceedings (cont) AR20210009057 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1