IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220008631 APPLICANT’S REQUEST: an upgrade of his general discharge under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Army Discharge Review Board) * DD 214 (Certificate of Release or Discharge from Active Duty) * Five letters of support 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, when he entered the military at the young age of 19, he was extremely naive about responsibility and the importance of pledging an oath to his country; he honestly did not realize what he had gotten himself into. He believes now, due to the improvements he has made in his life, the Board can favorably consider his upgrade request. a. Being alone and away from his family for the first time was an eye-opening experience. The applicant had decided to enlist so he could escape the volatile and disparaging community in which he was raised; shortly after joining, his stepfather was diagnosed with a serious heart condition, and his mother was suffering from diabetic complications. His parents' medical conditions only caused his family to become even more broken than it already was. b. As the applicant adjusted to military life, his parents' circumstances weighed on him heavily; during boot camp, he endured a variety of situations, one of which resulted in a physical altercation. On his assignment to, the applicant found that being alone led him to making poor choices as a way of coping with his feelings of depression. He wishes now that, rather than pursing discharge action, his leadership had offered him the opportunity for rehabilitation, and that he would have had access to mental health resources, like Soldiers do today. c. Following his separation from the Army, the applicant struggled greatly for some years, unaware he was eligible for behavioral health and career development services; however, once he secured a stable job, he never looked back. He declares he is now a homeowner, a business owner, and an active member of his community; in addition, he has had the benefit of a very loving and supportive family, who have given him courage and strength. The applicant concludes, "I hope that you understand my journey, and I ask that you find it in your hearts, as fellow Veterans, to grant me this upgrade request." 3. The applicant provides letters for support from family members, his employer, and the Regional Manager for his State's Department of Military and Veterans Affairs. * The applicant's spouse affirms the applicant has worked through many emotional and mental issues that resulted from his military service, and he has shown immeasurable growth; he is a loving father, is active in the community, and has maintained steady employment, receiving accolades for his leadership * The applicant's stepsister, an Army master sergeant, states the illness and death of her father, the applicant's stepfather, greatly affected the applicant; he was not allowed to attend memorial services; over that last decade, the applicant has become a vital pillar for the family, his place of employment and the community * The applicant's father-in-law and mother-in-law both attest to the applicant's commitment to his family and their daughter; his leadership in the household is that of a good man and male role model; they both feel the applicants' separation was unjust, and that the applicant deserves an honorable character of service * a Lead Supply Chain Analyst for a major food store chain, states, as the Lead Reach Truck Driver, the applicant has been a key player in the chain's warehouse division; he is the glue that holds his department together, and the applicant's actions while on active duty do not reflect the man he is today * Mr. Regional Manager, Department of Veterans Affairs, maintains the applicant has turned his life around; he is a better man, and his dedication to his family and service to others are second to none; Mr. asks the Board to carefully consider the applicant's past 14 years of exemplary behavior 4. A review of the applicant's service record shows: a. On 22 February 2005, the applicant enlisted into Regular Army for 4 years; he was 19 years old. Upon completion of basic combat training at Fort Jackson, SC, orders transferred him to Fort Gordon, GA for advanced individual training (AIT) in military occupational specialty 25U (Signal Support Systems Specialist); he arrived at Fort Gordon, on or about 8 May 2005. b. On 25 August 2005, the applicant's AIT commander requested the U.S. Army Criminal Investigation Command (CID) to open an investigation after the unit discovered Private (PV1)/E-1 in possession of a possible controlled substance; a field test confirmed the substance was marijuana. During CID questioning, PV1 confessed to using marijuana with PV1 and PV1 acknowledged smoking marijuana with the applicant and PV1 the applicant subsequently provided a sworn statement affirming he had used marijuana. c. Effective 1 September 2005, the applicant's AIT leadership promoted him to private (PV2)/E-2. On or about 1 October 2005, the applicant graduated from AIT, and orders assigned him to an aviation company in Hawaii; he arrived at his new unit, on or about 8 December 2005. d. On 6 February 2006, the applicant provided a urine sample, and, on 10 February 2006, urinalysis results came back positive for THC (tetrahydrocannabinol, the primary psychoactive ingredient in marijuana). On 21 February 2006, the applicant's battalion commander offered him nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana. On 22 February 2006, the applicant accepted the NJP and, after an open hearing, during which he presented matters in defense, mitigation, and/or extenuation, the battalion commander found him guilty; the resulting punishments included reduction to private (PV1)/E-1. e. On 16 February, and again on 21 February 2006, the applicant submitted urine samples for urinalysis; both returned positive for THC. On 2 March 2006, the applicant's first sergeant (1SG) counseled the applicant, using a DA Form 4856 (Developmental Counseling Form); the 1SG informed the applicant he would be recommending the applicant for separation; in his response, the applicant annotated his agreement with the counseling, but declared, "I don't understand why I came up positive w/a higher level (of THC) when I have stopped using." f. On 3 March 2006, the Division Psychiatrist completed a DA Form 3822-R (Report of Mental Status Evaluation) pertaining to the applicant; the psychiatrist opined the applicant showed, "no evidence of a psychiatric condition, which would prevent this Solder from participating in any legal or administrative actions." In addition, the psychiatrist stated the applicant met the medical retention standards, outlined in Army Regulation (AR) 40-501 (Standards of Medical Fitness), and "there is no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels." g. On 19 April 2006, the applicant's commander informed him, via memorandum, that he was initiating separation action against the applicant, in accordance with chapter 14 (Separation for Misconduct), section III (Acts or Patterns of Misconduct), paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). The commander indicated the reason for his proposed action was the applicant had wrongfully used marijuana; additionally, the commander stated he would be recommending the applicant for a general discharge under honorable conditions, but the final decision rested with the separation authority. h. On 19 April 2006, after consulting with counsel, the applicant acknowledged counsel had explained the basis for the contemplated separation action and had advised him of his rights and the effects of waiving those rights. (1) The applicant additionally affirmed that, if he had less than 6 years of total active and reserve military service at the time of separation, he was not entitled to have his case heard by an administrative separation board unless the separation authority intended to issue the applicant an under other than honorable conditions character of service. (2) The applicant then requested to appear personally before an administrative separation board, with counsel, to present his case to an administrative separation board, and he indicated he would be submitting statements in his own behalf. i. On 28 April 2006, the applicant's commander signed a memorandum for record, wherein he stated the applicant had been given 7 duty days to submit matters in his own behalf, but, as of 27 April 2006, no matters were provided. As such, the applicant had effectively waived the right to submit written matters, and the commander intended to immediately forward the applicant's separation packet to the approval authority. j. On 4 May 2006, the Combat Aviation Brigade trial counsel submitted a written legal review of the applicant's separation packet; the trial counsel found the packet to be legally sufficient and noted the applicant's chain of command all recommended a general discharge under honorable conditions. k. On or about 9 May 2006, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions; on 7 June 2006, orders discharged the applicant accordingly. The applicant's DD Form 214 shows he completed 1 year, 3 months, and 6 days of his 4-year enlistment contract; item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) lists the following: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 5. The applicant requests the upgrade of his general discharge under honorable conditions. a. During the applicant's era of service, commanders were to initiate separation action against Soldiers who had committed a serious military or civilian offense, and for which the UCMJ authorized a punitive discharge for the same or similar offense. Per paragraph 14-12c (2), AR 635-200, abuse of illegal drugs was deemed serious misconduct. b. According to the Manual for Courts-Martial, in effect at the time, a punitive discharge was among the authorized maximum punishments for violations of Article 112a (Wrongful Use, Possession, Manufacture, or Introduction of Controlled Substances). 6. 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. 7. 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, available records and/or submitted documents in support of the petition. 8. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting an upgrade of his general discharge under honorable conditions. He failed to select a box in section 21 of DD Form 293 but appears to contend his misconduct was related to other mental health issues. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 22 February 2005; 2) During a CID investigation that originated on 25 August 2005 at the request of the applicant’s AIT Commander, the applicant admitted using marijuana while in training; 3) On or about 1 October 2005, the applicant graduated from AIT, and orders assigned him to an aviation company in Hawaii; he arrived at his new unit, on or about 8 December 2005; 4) On 22 February 2006 the applicant accepted NJP under provision of Article 15 of the UCMJ for wrongful use of marijuana related to a positive urine sample submitted on 6 February 2006; 5) On 16 February, and again on 21 February 2006, the applicant submitted urine samples for urinalysis and both returned positive for THC; 6) On 19 April 2006, the applicant's commander informed him, via memorandum, that he was initiating separation action against the applicant, in accordance with chapter 14 (Separation for Misconduct), section III (Acts or Patterns of Misconduct), paragraph 14-12c (Commission of a Serious Offense), Army Regulation (AR) 635-200; 7) On or about 9 May 2006, the separation authority approved the commander's separation recommendation and directed the applicant's general discharge under honorable conditions, and on 7 June 2006 orders discharged the applicant accordingly. c. The electronic military medical record, AHLTA, VA electronic medical record, JLV, and ROP were reviewed. A review of AHLTA was void of any BH-related treatment history for the applicant and no hardcopy military BH-related records were provided for review. A review of JLV was void of any treatment history for the applicant and he does not have a service-connect disability. No hardcopy civilian BH records were provided for review. d. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience during his time in service. However, he appears to contend his misconduct was related to other mental health issues, and per Liberal Consideration guidance his contention is sufficient to warrant the Board’s consideration. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant appears to contend his misconduct was associated with other mental health issues, as characterized by stress resulting from concerns about his parents’ medical conditions. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant appears to contend his misconduct was related to other mental health issues however a review of the records was void of the applicant receiving a BH diagnosis or treatment during or after service and he did not provide evidence supporting his contention. BOARD DISCUSSION: 1. 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 counsel’s statement, 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 advising official finding no evidence in the records that the applicant had a condition or experience during his time in service. 2. The Board determined the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board found the character letters of support and the applicant’s post service accomplishment and community outreach noteworthy. However, based on the preponderance of evidence the Board found there was insufficient evidence of in- service mitigation to overcome the misconduct. The Board determined the applicant’s discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an honorable discharge. Based on this, the Board determined relief was not warranted and denied relief. 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 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. Title 10, United State Code, section 1556 (Ex Parte Communications Prohibited) provides the Secretary of the Army shall ensure that an applicant seeking corrective action by 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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable discharge was separation with honor. Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Commanders were required to initiate separation action when they determined a Soldier had committed serious misconduct and could clearly establish rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, for which the UCMJ authorized a punitive discharge for the same or similar offense. Per subparagraph (2), abuse of illegal drugs was deemed serious misconduct. 4. The Manual for Courts-Martial, United States, Appendix 12 (Maximum Punishments Chart), in effect at the time, showed punitive discharges as available maximum punishments for violations of Article 112a (Wrongful Use of Marijuana), UCMJ. 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) AR20220008631 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1