IN THE CASE OF: BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210010249 APPLICANT REQUESTS: an upgrade of his under honorable (general) discharge conditions to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in Lieu of the DD Form 149 (Application for Correction of Military Record) * Affidavit of Service by Mail * Cover Sheet Action Form * Adverse Elimination * Approved Separation * Report of Unfavorable Information for Security Determination 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, in effect: a. He was informed of possibly getting a change to his characterization of service so he was able to use veteran benefits. He is honored to have been able to serve and pay respect to his country. b. He still struggles with not being able to make his actions correct, at the time of the incident. He was in between mailing addresses, lost contact information to his unit, and didn't have transportation. c. He received his discharge notice from his father after he was already discharged along with all the disciplinary notification. This has deeply saddened him since and he has just been able to bring himself to ask for a review of discharge. That was a rough time in his life with many mistakes and he's truly sorry. 3. On 1 October 2003, the applicant, at the age of 18 years old, enlisted in the US Army Reserve (USAR) for a period of 6 years. 4. On 13 May 2004, the applicant was promoted to the rank of Private First Class. 5. On 11 January 2005, Headquarters, 80th Regional Readiness Command published orders awarding the applicant the military occupational specialty of 74D. 4. The applicant's service records are void of the separation packet; however, the applicant provided the following document's for the Board's review: a. An Affidavit of Service by Mail, which shows on 25 May 2005, the Unit Administrator Technician mailed a notification of separation to the applicant at his last known address. b. A Cover Sheet Action Form, dated 22 September 2005, which shows on 14 May 2005 the applicant tested positive for the use of marijuana and his command recommended he be discharged with an under honorable conditions (general). The applicant was mailed the notification on 18 July 2005 and failed to respond. Failure to respond to the notification serves as a waiver of all rights. The applicant was recommended for an under honorable conditions (general) discharge. c. A memorandum, dated 18 September 2005, subject Adverse Elimination, which states the action had been reviewed and found to be legally sufficient to accomplish separation at the level of an under honorable conditions (general) discharge. The evidence was sufficient to find the applicant had engaged in an act of serious misconduct by consuming illegal drugs. d. A memorandum, dated 29 September 2005, which is the approval authority's memorandum directing the applicant's separation from the USAR under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations), chapter 12-1(d). e. An undated Report of Unfavorable Information for Security Determination, which shows the applicant's collateral access was suspended because he tested positive for the use of marijuana on a urinalysis on 14 May 2005. 5. On 29 September 2005, orders were published discharging the applicant from the USAR effective 29 September 2005 with an under honorable conditions (general) discharge. 6. The applicant is requesting an upgrade of his discharge stating he never received the notification of separation until after he had already been separated from the USAR. He would like an upgraded discharge so he can have received medical benefits. a. The absence of the applicant's complete separation packet means we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's complete separation packet, and in light of the record copy of his separation orders, the Board presumes the applicant's leadership completed his separation properly. This presumption notwithstanding, the lack of a separation packet represents an administrative irregularity. b. During the applicant's era of service, Army Regulation 135-178, states a Soldier may be discharged for misconduct when it is determined that the Soldier is unqualified for further military service. Paragraph 12-1(d) states abuse of illegal drugs is serious misconduct. Discharge action normally will be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more disciplinary infractions or incidents of other misconduct and processed for discharge. Commanders would notify the Soldier in writing of the following: (1) The basis of the proposed separation, whether the action could result in discharge from the Army, and the least favorable character of service the Soldier might receive. (2) Soldiers had the following rights: consult with counsel; obtain copies of all documents relevant to the separation; request a hearing before an administrative separation board; have representation by counsel before the administrative separation board; and/or submit a conditional waiver, wherein the Soldier would agree to waive the administrative separation board on the condition the separation authority would approve a character of service higher than under other than honorable conditions (3) In addition, commanders had to make reasonable efforts to ensure the Soldier received the notification memorandum; if the Soldier could not be contacted or refused receipt acknowledgement, the notification memorandum was to be sent via certified mail with a return receipt requested, and the individual mailing the notification had to prepare an Affidavit of Service by Mail. If the Soldier failed to respond within 30 calendar days, his/her inaction constituted a waiver of rights. c. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, 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, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for 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 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. Army Regulation 135-178, states a Soldier may be discharged for misconduct when it is determined that the Soldier is unqualified for further military service. Paragraph 12- 1(d) states abuse of illegal drugs is serious misconduct. Discharge action normally will be based upon commission of a serious offense. However, relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more disciplinary infractions or incidents of other misconduct and processed for discharge. Commanders would notify the Soldier in writing of the following: (1) The basis of the proposed separation, whether the action could result in discharge from the Army, and the least favorable character of service the Soldier might receive. (2) Soldiers had the following rights: * consult with counsel * obtain copies of all documents relevant to the separation * request a hearing before an administrative separation board * have representation by counsel before the administrative separation board * submit a conditional waiver, wherein the Soldier would agree to waive the administrative separation board on the condition the separation authority would approve a character of service higher than under other than honorable conditions (3) In addition, commanders had to make reasonable efforts to ensure the Soldier received the notification memorandum; if the Soldier could not be contacted or refused receipt acknowledgement, the notification memorandum was to be sent via certified mail with a return receipt requested, and the individual mailing the notification had to prepare an Affidavit of Service by Mail. If the Soldier failed to respond within 30 calendar days, his/her inaction constituted a waiver of rights. 3. 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. 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, 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. 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) AR20210010249 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1