IN THE CASE OF: BOARD DATE: 3 February 2022 DOCKET NUMBER: AR20210011496 APPLICANT REQUESTS: The applicant requests an upgrade of her general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 she is requesting a discharge upgrade to receive an opportunity to attend college to better herself and obtain medical assistance. 3. On 28 June 2001, at the age of 17 years, she enlisted in the Regular Army for 3 years in the rank of private two (PV2/E-2). Her records show: a. After successful completion of advanced individual training she was assigned to Headquarters and Headquarters Troop, 1st Squadron, 16th Cavalry Regiment, Fort Knox, KY, and received an initial counseling and a counseling on the commander’s policy letters that consisted of a drug and alcohol policy on 7 January 2002. b. On 22 January 2002, the applicant was counseled for flying to Baltimore, MD, between 17-21 January 2002 without an approved pass. The applicant’s unit leave and pass policy, dated 6 January 2002, states a pass will be submitted using a troop request form; Soldiers remain in an available for duty status during non-duty hours until a regular pass is approved. c. On 23 January 2002, the applicant’s immediate commander requested an adverse action flag be initiated effective 23 January 2002, it is unknown if she received this flag. d. On 24 and 28 January 2002, she was counseled for failure to be at her appointed place of duty. e. On 30 January 2002, she accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful order when she flew to Baltimore, MD, from on or about 17 January to on or about 21 January 2002 without an approved mileage pass. She received 7 days’ extra duty and restriction. f. On 14 February 2002, she was counseled for failure to be at her appointed place of duty. g. On 4 March 2002, she received her February 2002 monthly counseling that states she failed two Army physical fitness tests. h. On 7 March 2002, she was counseled for failure to be at her appointed place of duty. i. The applicant received an adverse action flag with an effective date of 12 March 2002, it is unknown when this flag was removed. j. On 18 March 2002, the applicant was counseled for failure to do corrective training from previous counseling dated 7 and 15 March 2002 (unavailable for review), and failure to be at her appointed place of duty. k. On 2 April 2002, she received her March 2002 monthly counseling from her noncommissioned officer in charge (NCOIC) that states she passed the Army physical fitness test. l. On 28 May 2002, she received her May 2002 monthly counseling from her NCOIC that states she made some improvements and her NCOIC was hopeful that she would be promoted the following month. m. On 10 and 13 June 2002, she was counseled for failure to be at her appointed place of duty. n. The applicant received an adverse action flag with an effective date of 18 June 2002. o. Three CID agent investigation reports, dated 26 and 27 June 2002, state: (1) Investigator B__ - On 26 June 2002, CID was notified by the applicants’ commander, Captain H__, that her roommate PFC J__ informed him she observed Private (PVT/E-1) S__ in possession of marijuana in their room. (2) Investigator C__ - On 26 June 2002, the applicant denied ever consuming marijuana. After searching the applicant’s room, they collected as evidence a plastic bag with a brown leafy substance and brownish seeds suspected to be marihuana, a carton of "Bugler" rolling papers and five photographs found in the bottom drawer of the applicant’s night stand. Investigator C__ also found a clear plastic bag containing a brown leafy substance and brownish seeds suspected to be marijuana in the trashcan. (3) Special Agent A__ - On 27 June 2002, Specialist (SPC) C__ stated he never saw the applicant in possession of marijuana. On 28 June 2002, the Staff Judge Advocate (SJA) opined that probable cause existed to believe the applicant and PVT S__ committed the offense of wrongful possession of marijuana. (4) Two sworn statements dated 26 June 2002, state: (a) The applicant - In December 2002, met a Soldier named PVT S__ through her roommate Private First Class (PFC) J__. In March 2002, S__ began bringing sandwich bags of marijuana to her room where he smoked and sold it to other Soldiers. There were times that PVT S__ would leave his 9 millimeter and marijuana in the applicant’s top drawer. (b) PFC J__ - The applicant’s boyfriend, PVT S__, smoked marijuana in their bathroom and room and she believed he was selling it in their room. On 24 June 2002, she saw him removing marijuana from the top of the wall behind a post where he hid it and saw he had a pistol in the applicant’s top nightstand drawer. She never witnessed the applicant using drugs. (5) On 26 June 2002, the applicant authorized CID access to her room to search and confiscate contraband, illegal devices, and devices used to consume drugs. p. On 1 July 2002, she received her June 2002 monthly counseling from her NCOIC that states she was not going to be recommended for promotion. q. The applicant’s adverse action flag with an effective date of 18 June 2002 was removed on 2 July 2002. r. Special Agent A__’s CID agent investigation report, dated 10 July 2002, states the applicant’s name check results from the U.S. Army Reserve Command yielded no derogatory information. s. A military police (MP) desk blotter, dated 11 July 2002, states the CID investigation revealed that the applicant consumed marijuana on multiple occasions. t. On 29 July 2002, she received her July 2002 monthly counseling from her NCOIC that states she continued to work on several missions and would be recommended for promotion. u. On 30 July 2002, the applicant was found guilty in a civil court on 3 June 2002, for the offense of driving under the influence of alcohol on 10 March 2002. Her immediate commander recommended her for a reduction in rank for her disregard for herself and others safety and she was not worthy of her current rank. u. Investigator C__’s CID agent investigation report, dated 31 July 2002, states the applicant was administered a urinalysis test and her results came back negative. v. On 6 August 2002, after review of the applicant’s commander’s request for reduction, the appropriate authority directed the applicant’s reduction to the grade of PVT/E-1. w. The applicant received an adverse action flag with an effective date of 7 August 2002, it is unknown when this flag was removed. x. Investigator B__’s CID agent investigation report, dated 13 August 2002, states on the SJA opined that there was probable cause to believe PVT S__ and the applicant and the applicant committed the offense of wrongful possession of marijuana when the applicant admitted to possessing marijuana in her room for PVT S__ and during the consent to search her room suspected marijuana was found. y. On 26 August 2002, she was counseled by her NCOIC for wrongful possession of marijuana and referred for a behavior medical evaluation. z. On 1 September 2000 [sic], she acknowledged an order not to drink while under the age of 21 while assigned to her unit. aa. On 4 September 2002, the CID final report of investigation states the SJA had sufficient admissible evidence to prosecute the applicant for the offense of wrongful possession of marijuana. On this same date, she accepted NJP under the provisions of Article 15, UCMJ, for wrongful possession of marijuana on or about 26 June 2002. She received forfeiture of $552.00 pay for 2 months, and 45 days’ extra duty and restriction. ab. On 16 October 2002, the applicant was counseled by her supervisor for still owing her landlord an amount of $500 ($431 for rent and $69 for damages to the apartment) after moving out on 10 October 2002 due to receiving her last Article 15. ac. On 15 October 2002, she was assigned to Troop Charlie, 1st Squadron, 16th Cavalry Regiment, Fort Knox, KY. ad. On 17 October 2002, the applicant’s unit was informed by Sprint that she was 60 days past due on her barracks phone service account. ae. On 18 October 2002, she received an outline for crime prevention and a counseling on reception and integration from her new first sergeant. af. On 23 October 2002, the applicant was counseled by the training room NCO for failure to pay her barracks room phone bill and failure to be at her appointed place of duty. ag. On 24 October 2002, she was counseled by the training room NCO for failure to be at her appointed place of duty and failure to obey an order by not moving from her previous barracks room to her new barracks room. ah. On 28 October 2002, she was counseled by the training room NCO for failure to keep the chain of command informed. The applicant went to the hospital and received 48 hours on quarters which caused her to miss performing her extra duty. ai. On 1 November 2002, she received her October 2002 monthly counseling from the training room NCO that states she received four negative counseling statements, her finances were not in order, and she had no chance of being promoted. aj. A serious incident report states on 13 November 2002 during a health and welfare check in the barracks, it was discovered that the applicant had a civilian (a former Soldier) sleeping in her bed and he had a pipe (drug type) and ammo for a gun. On this same date: (1) The applicant was counseled by SPC S__, for being caught with an unauthorized civilian in the barracks, who had in his possession drug paraphernalia and ammo. (2) She received an adverse action flag with an effective date of 13 November 2002, it is unknown when this flag was removed. (3) Her immediate commander recommended legal action be taken in that she be separated under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, with a general under honorable conditions discharge. ak. An MP desk blotter, dated 14 November 2002, states the applicant’s boyfriend had in his possession in her room a glass pipe blue in color, 37 Federal Classic bullets, and 6 Winchester bullets. al. On 15 November 2002, the applicant’s medical history exam showed she was 5 months pregnant and currently in good health. am. On 21 November 2002, she accepted NJP under the provisions of Article 15, UCMJ, for failure to obey a lawful general order by wrongfully having an unauthorized visitor in her room who was in possession of both drug paraphernalia and ammunition on or about 13 November 2002. She received forfeiture of $552.00 pay for 2 months (suspended, to be automatically remitted if not vacated prior to 19 February 2003), 45 days’ restriction, and 15 days’ extra duty. an. On 25 November 2002, the applicant was medically cleared to be administrative separated from the Army. ao. A mental status evaluation, dated 27 November 2002, psychiatrically cleared the applicant for administrative separation. ap. On 9 December 2002, the applicant’s immediate commander notified her that she was being recommended for separation under the provisions of AR 635-200, Chapter 14, for patterns of misconduct. On this same date: (1) The applicant acknowledged receipt of the notification to separate her. (2) Her immediate commander recommended she receive a general under honorable conditions discharge prior to her expiration term of service under the provisions of Chapter 14, paragraph 14-12b (Pattern of Misconduct), AR 635-200 and not transferred to the Individual Ready Reserve for: * failure to be at her appointed place of duty at least 10 times in 2002 * violating the commander's mileage pass policy by going to Baltimore, MD on 22 January 2002, for which she received a Summarized Article 15 * stopped for driving under the influence of alcohol on Fort Knox on 10 March 2002, for which she appeared in Magistrate Court on 3 June 2002 and was found guilty, and administratively reduced in rank by one pay grade * she was under the age of 21 years to legally consume alcohol * in possession of marijuana on 26 June 2002, for which she received a Field Grade Article 15 * failed to pay a debt totaling $500.00 in October 2002 to her landlord at Basham Apartments * failure to pay her barracks phone service bill on 16 October 2002, for which she was at least 60 days overdue * failed to obey an order by Staff Sergeant W__ by not moving her personal belongs into another barracks room on 16 October 2002 * failure to obey a battalion policy on 13 November 2002, by having a male visitor in her barracks room outside of the authorized visiting hours and who was in possession of drug paraphernalia (a pipe) that contained marijuana and ammunition, for which she received a Field Grade Article 15 aq. On 13 December 2002, she consulted with legal counsel and was advised of the contemplated action to separate her under the provisions of AR 635-200, paragraph 14- 12b, and its effects, and the rights available to her. She elected not to submit a statement on her own behalf. ar. On 16 December 2002, her intermediate commander recommended she receive a general discharge certificate under the provisions of AR 635-200, Chapter 14, paragraph 14-12b (Pattern of Misconduct) and not be transferred to the Individual Ready Reserve (IRR). On the same date, the appropriate authority approved the applicant's separation under the provisions of AR 635-200, Chapter 14, paragraph 14- 12b, with a general under honorable conditions discharge certificate, and would not be transferred to the IRR. as. On 18 December 2002, she was assigned to the U.S. Army Transition Point, Fort Knox, KY for transition processing, effective 23 December 2002. at. On 23 December 2002, she was discharged accordingly. Her DD Form 214 shows she was discharged from active duty under the provisions of AR 635-200, paragraph 14-12b (Pattern of Misconduct) with a general under honorable conditions character of service. She completed 1 year, 5 months and 26 days of net active service during this period. Her DD Form 214 shows in: * block 24 (Character of Service) - Under Honorable Conditions (General) * block 25 (Separation Authority) - AR 635-200, paragraph 14-12b * block 26 (Separation Code) - "JKA" * block 27 (Reentry (RE) Code) - "3" * block 28 (Narrative Reason for Separation) - Pattern of Misconduct 4. 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: The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was 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. 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, United States Code, 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. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of Chapter 14. (1) The separation authority may direct a general discharge if such is merited by the Soldier’s overall record. (2) Characterization of service as honorable is not authorized unless the Soldier’s record is otherwise so meritorious that any other characterization clearly would be inappropriate. A characterization of honorable may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is delegated. d. Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 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) AR20210011496 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1