IN THE CASE OF: BOARD DATE: 7 March 2023 DOCKET NUMBER: AR20220007976 APPLICANT REQUESTS: in effect, an upgrade of the characterization of service reflected on the orders discharging him from the United States Army Reserve (USAR) effective 19 June 2000, to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 12 May 2022 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 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 the infraction he was in a car accident and injured his back. Instead of using prescription drugs he used marijuana for his anxiety and pain relief. In April 1998, there was a police report filed in which shows he was involved in a head on collision; caused by the other driver. Laws have been passed legalizing the use of medicinal marijuana. 3. His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he enlisted in the New Jersey Army National Guard (NJARNG) on 27 April 1990 and he was released from the NJARNG on 17 January 1992, with an Under Honorable Conditions Certificate, due to Unsatisfactory Participant, National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 8-27g. He completed 1 year, 8 months and 21 days of net service this period and was awarded or authorized the National Defense Service Medal and the Army Service Ribbon. 6. On 24 October 1998, the applicant enlisted in the U.S. Army Reserve (USAR). 7. On 2 August 1999, the applicant received a positive drug testing and on 22 September 1999, his command initiated a Report to Suspend Favorable Personnel Action (FLAG) due to adverse action. 8. The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing. However, it does contain a memorandum, for the contemplated action to separate the applicant for Misconduct, under Army Regulation (AR) 135-178 (Enlisted Administrative Separations), Chapter 7, paragraph 7-11cl (Abuse of Illegal Drugs). The memorandum is not signed by the applicant or counsel. 9. Orders Number 00-171-007, issued by 77th Regional Support Command, 19 June 2000, shows in part, the applicant was discharged from the USAR, effective 19 June 2000, Authority: AR 135-178, Type of Discharge: General (under Honorable Conditions). 10. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicant’s 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’s record is void of the specific facts and circumstances surrounding his discharge processing. However, it does contain a memorandum, for the contemplated action to separate the applicant for Misconduct, under AR 135-178, Chapter 7, paragraph 7-11c (Abuse of Illegal Drugs). The applicant does not provide any evidence of the nature of the misconduct and/or post-service achievements or letters of reference to support 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. Army Regulation 135-178 (Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the U.S. Army while providing for the orderly administrative separation of Army National Guard of the United States (ARNGUS) and U.S. Army Reserve (USAR) enlisted Soldiers for a variety of reasons. a. An honorable characterization is appropriate when the quality of the Soldier'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. General (under honorable conditions). If a Soldier's service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions. Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of the Soldier's conduct or performance of duty outweigh positive aspects of the Soldier's military record. c. A Soldier may be discharged for misconduct when it is determined under the guidance set forth in chapter 2, section I, that the Soldier is unqualified for further military service by reason of one or more of the following circumstances: d. Abuse of illegal drugs or alcohol. Illegal drug use 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. Commanders will process for separation all Soldiers who test positive for illegal drug use. 2. 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 under other than honorable conditions, 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. 3. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 4. 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) AR20220007976 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1