IN THE CASE OF: BOARD DATE: 13 July 2022 DOCKET NUMBER: AR20210016898 APPLICANT’S REQUEST: An upgrade of his under other than honorable conditions (UOTHC) discharge to fully honorable. 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) in-lieu of the DD Form 149 (Application for Correction of Military Record) * Headquarters, U.S. Army, 90th Regional Support Command, North Little Rock Arkansas, Orders 01-120-011 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 he is attempting to have his discharge upgraded so that he may be able to utilize his veterans’ benefits. He was declined a Department of Veterans Affairs (VA) home loan due to the characterization of his service. He believes his discharge was inequitable because it was based on one isolated incident in a 28-month period of service with no other adverse action. He also annotated his application submitted to show he suffers from “other mental health” issues. 3. On 4 May 1995, the applicant enlisted in the United States Army Reserve (USAR) for 8 years, in pay grade E-1. He entered initial active duty for training on 26 June 1995, he completed the training requirements, and he was awarded military occupational specialty (MOS) 51K (Plumber). On 19 August 1996, he was honorably released from active duty and returned to his USAR unit in Texas. His DD Form 214 shows he completed 1 month and 24 days of net active service and he was awarded the National Defense Service Medal and Army Service Ribbon. 4. He was advanced to specialist four/E-4, on 19 May 1997, this is the highest rank he achieved. 5. A memorandum from the Commander, Company C, 980th Engineer Battalion, Seagoville, TX; subject: Letter of Instructions-Unexcused Absence, dated 8 July 2000, shows he was advised that he was absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) for the following period(s): (2) 8 July 2000; (1) 8 July 2000; (1) 25 June 2000; (2) 24 June 2000; (1) 24 June 2000; and (1) 21 May 2000. The commander also advised the applicant: a. Absences from training assemblies may be excused only for reasons of sickness, injury, emergency or other circumstances beyond his control. If his absence was for one of the above reasons, he should furnish the unit an appropriate affidavit or certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency or circumstances, requesting that it be excused. His absences could not be excused unless his request, and affidavit or certificate was received within 15 days of the date he received this memorandum b. As a result of this memorandum, he hoped the applicant would take immediate steps to improve his attendance. The next scheduled training assembly was 14 July 2000. 6. The applicant’s unit urinalysis urine specimen collected, on 26 August 2000, tested positive for Tetrahydrocannabinol (THC). 7. On 20 September 2000, the applicant was appointed counsel and advised of the positive urine specimen collected on 26 August 2000. He was also advised of his rights. 8. On 4 October 2000, the applicant's USAR commander notified the applicant, by certified mail, of his intent to separate the applicant under the provisions of Army Regulation (AR) 135-178 (Army National Guard and Army Reserve – Separation of Enlisted Personnel), paragraph 7-11c(1), for abuse of marijuana, an illegal drug, with a general discharge. He was advised of his rights. He acknowledged receipt of notification on 12 October 2000. 9. On 5 November 2000, a FLAG was initiated against the applicant for failing the Army Physical Fitness Test. 10. Initially, the applicant’s chain of command recommended that he be retained in the USAR, because he was a first-time offender. However, an email shows on 30 March 2001, his chain was notified the applicant was not a first-time offender. He also tested positive for THC on 20 April 1996 and was retained by his commander. 11. On 2 April 2001, the Commanding General, 420th Engineer Brigade, Bryan, TX, recommended the applicant’s separation with an UOTHC discharge. 12. On 21 April 2001, the appropriate separation authority directed the applicant’s reduction to pay grade E-1 and separation under the provisions of AR 135-178, paragraph 7-11c(1), with an UOTHC discharge. 13. Headquarters, U.S. ARMY, 90th Regional Support Command, Orders 01-120-011 show on 30 April 2001, the applicant was discharged from the USAR, under the provisions of AR 135-178, with an UOTHC characterization of service. 14. AR 135-178, in effect at the time, prescribed policies and procedures for the separation of Reserve Component Soldiers. Paragraph 7-11c.1. (Commission of a Serious Offense – Abuse of Illegal Drugs). Abuse of illegal drugs was serious misconduct; although discharge action was to be based on the commission of a serious offense, relevant facts could mitigate the nature of the offense. As such, a single drug offense could be combined with one or more disciplinary infractions and processed for separation under another of this provision's subparagraphs (i.e. subparagraph a (Minor Disciplinary Infractions) or b (A Pattern of Misconduct)). Soldiers under the grade of E-5, or with less than 3 years' total military service, could be processed for discharge, if they were first-time offenders; Soldiers with 3 or more total years of military service were required to be separated upon the discovery of a drug offense. Commanders were to use the administrative board procedure for this provision, unless an under other than honorable conditions discharge was not warranted. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 15. The applicant argues that he needs his discharged upgraded so that he may be able to utilize his VA benefits. He was denied a VA home loan due to the characterization of his service. He believes his discharge was inequitable because it was based on one isolated incident in a 28-month period of service with no other adverse action. However, the available evidence shows he had 6 or more unexcused absences, and he tested positive twice, he tested positive on 20 April 1996, and he was retained on active duty. He tested positive a second time on 26 August 2000, and he was discharged under the provisions of AR 135-178, with an under other than honorable conditions character of service. 16. The ABCMR does not grant requests for the correction of records solely for making an applicant eligible for veterans or other benefits. The Board decides every case individually based upon its merits when an applicant requests a correction of the military record. 17. He also contends in his application submitted to the Board that he suffers from “other mental health” issues. However, he provided nothing in support of his contention and there is nothing in the available evidence to support such a contention. 18. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 19. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, his contentions, available records and/or document submitted in support of the petition. 20. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) were not in use at the time of his service. His hardcopy medical record was not available for review. The applicant asserted other mental health issues were related to the misconduct that led to his discharge. No medical documentation of any psychiatric conditions were provided for review. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is no documentation to support behavioral health diagnosis at the time of his discharge. There is no documented psychiatric diagnosis to consider with respect to mitigation of his misconduct. a. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (a) No (2) Did the condition exist or experience occur during military service? (a) No (3) Does the condition or experience actually excuse or mitigate the discharge? (a) N/A (4) Does the condition or experience outweigh the discharge? (a) N/A BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board concurred with the advisory official finding insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided no evidence of a documented psychiatric diagnosis, post-service achievements, or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 X X X 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. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 135-178, in effect at the time, prescribed policies and procedures for the separation of Reserve Component Soldiers. a. An honorable character of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance, or otherwise was 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. Paragraph 7-11c.1. (Commission of a Serious Offense – Abuse of Illegal Drugs). Abuse of illegal drugs was serious misconduct; although discharge action was to be based on the commission of a serious offense, relevant facts could mitigate the nature of the offense. As such, a single drug offense could be combined with one or more disciplinary infractions and processed for separation under another of this provision's subparagraphs (i.e. subparagraph a (Minor Disciplinary Infractions) or b (A Pattern of Misconduct)). Soldiers under the grade of E-5, or with less than 3 years total military service, could be processed for discharge, if they were first-time offenders; Soldiers with 3 or more total years of military service were required to be separated upon the discovery of a drug offense. Commanders were to use the administrative board procedure for this provision, unless an under other than honorable conditions discharge was not warranted. 4. On 3?September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 5. On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20210016898 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1