IN THE CASE OF: 
 
  BOARD DATE: 16 December 2022 
 
  DOCKET NUMBER: AR20220005278 
 
 
APPLICANT REQUESTS:  his under honorable conditions (general) discharge be upgraded to an honorable discharge. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Commercial Pilots License 

• Flight Instructors License 


 
FACTS: 
 
1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 at the time of discharge he was age 19, immature, and dealing with his parent’s divorce while overseas. As a mature adult at age 40, he conducts himself responsibly in his personal and professional life. He has abided by all laws and rules of society and obtained professional licenses from the Federal Aviation Administration. He has been a commercial helicopter pilot and instructor for almost  
10 years. 
 
3.  The applicant provides a: 
 
• Commercial Pilots License issues on 5 January 2015 

• Flight Instructors License issued on 28 March 2021 


 
4.  A review of the applicant’s service record shows, he enlisted in the Regular Army for 4 years on 2 August 2000. He held military occupational specialty 54B (Chemical Operations Specialist). 
 
5.  On 20 June 2001, while in Germany, he accepted nonjudicial punishment, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) in violation of Article 112a, on or about: 
 
• 27 May 2001, for wrongfully possessing one tablet, more or less, of Methylendioxymethamphetamine (ecstasy), a controlled substance 

• 27 May 2001, for wrongfully using Methylendioxymethamphetamine (ecstasy), a controlled substance 

• 18 May 2001, for wrongfully possessing some amount of marijuana, a controlled substance. 

• 18 May 2001, for wrongfully using marijuana, a controlled substance 

• 29 April 2001, for wrongfully possessing about two tablets of Methylendioxyrnethamphetamine (ecstasy), a controlled substance  

• 29 April 2001, for wrongfully using Methylendioxymethamphetamine (ecstasy), a controlled substance 

• His punishment consisted of reduction from pay grade E-2 to E-1, a forfeiture of $521 pay for 2 months, and 45 days of restriction and extra duty 


 
6.  An Army Substance Abuse Program (ASAP) Rehabilitation Team Meeting Document, dated 20 July 2001, shows the applicant was referred to ASAP for 90 days. The disposition of the outcome is not available. 
 
7.  He underwent a medical examination and a mental status evaluation, and he was cleared for administrative action deemed appropriate by his chain of command, including separation for misconduct. 
 
8.  On 22 October 2001, the applicant's immediate commander notified him of the intent to initiate separation action against him under the provisions of Army Regulation (AR) 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, due to  
an Article 15 received for wrongful possession and usage of Methylendioxy-methamphetamine (Ecstasy) and Marijuana, and due to the counseling he received for failing to be at his appointed place of duty at the time prescribed. This conduct was prejudicial to good order and discipline and would not be tolerated by his command. He was being recommended to receive a General Discharge Certificate. 
 
9.  On 23 October 2001, the applicant acknowledged notification and was afforded the opportunity to consult with counsel. He was advised of the basis for the contemplated action to separate him and of the rights available to him. He elected not to submit a statement in his own behalf. 
 
10.  The applicant's commander formally recommended the applicant's separation, under the provisions of AR 635-200, paragraph 14-12b. His intermediate commander also recommended the applicant’s separation with a General Discharge Certificate.  
11.  On 8 November 2001, the applicant’s discharge action was reviewed for legal sufficiency. 
 
12.  On 13 November 2001, the separation authority approved the separation recommendation under the provisions of AR 635-200, paragraph 14-12b and directed the issuance of a General Discharge Certificate. 
 
13.  On 29 November 2001, the applicant was discharged, in the rank of private/E-1. His awards are listed as the Army Service Ribbon and the Marksman Marksmanship Qualification Badge Rifle (M-16). He completed 1 year, 3 months, and 28 days of net active service this period and his DD Form 214 contains the following entries in: 
 
• Character of Service – Under Honorable Conditions (General) 

• Separation Authority) – AR 635-200, Paragraph 14-12b 

• Narrative Reason for Separation – Misconduct 


 
14.  Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 
 
BOARD DISCUSSION: 
 
The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency.  The Board found insufficient evidence of in-service mitigating factors for the misconduct and although the applicant provided evidence of post-service achievements, he did not provide letters of support to weigh 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. 
 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. 
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. 
 
 
  12/27/2022

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, U.S. 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.  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. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 
 
3.  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 on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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//