IN THE CASE OF: BOARD DATE: 11 July 2023 DOCKET NUMBER: AR20230001390 APPLICANT REQUESTS: * reconsideration of his previous request to upgrade his under honorable conditions (general) characterization of service * a change to his narrative reason for separation * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), 24 September 2022 * self-authored statement, undated * Memorandum, Subject: Request for Legal Action, 26 February 2002 * 2 DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), 19 March 2002 to 11 July 2002 * 3 Memoranda, Subject: Separation UP (under the provisions of) AR 635-200, Chapter 14-12c, B Company, 603d Aviation Support Battalion, 12 November 2002: Commander’s notification; Applicant’s acknowledgement; Legal Review * Orders 323-51, Headquarters, 3D Infantry Division (Mechanized) and Fort Stewart, 19 November 2002 * DD Form 2648 (Preseparation Counseling Checklist), 25 November 2002 * 2 DD Forms 214 (Certificate of Release or Discharge from Active Duty), member copies, 26 November 2002 * Army Discharge Review Board (ADRB) - Case Report and Directive, 4 May 2011 * ADRB letter, 23 May 2011 * 2 Memorandum (Immediate and intermediate commander recommendation for discharge), B Company, 603d Aviation Support Battalion, undated * Memorandum (Approved discharge), Headquarters, Division Support Command, undated FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20190012525 on 10 February 2021. 2. The applicant provides new evidence which was not previously considered by the Board. The applicant states: a. His life has changed in many ways. He has completed all the necessary steps in the correction process of his life. He has earned the right to vote, and vacated, sealed, and expunged his records. He has had no trouble with the law since 2006. He states he has had difficulty getting veteran benefits such as medical care and home loans. b. His discharge was illegally done in the name of the U.S. Army. The evidence will prove retaliation efforts were made to remove him from service and any further denial of change to his discharge status is also illegal. Additionally, he states evidence will be provided in his next hearing where he will be in attendance with his counsel. 3. The applicant enlisted in the regular Army on 21 September 2000. 4. The applicant received negative counseling from Noncommissioned Officers (NCO) on four occasions between 21 May 2001 to 12 June 2001, for failure to report (FTR). Additionally, he was advised that any future offenses would result in Uniform Code of Military Justice (UCMJ) action. 5. On 17 July 2001, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, UCMJ, for 4 violations of FTR to physical training formation, from 21 May 2001 to 12 June 2001. His punishment consisted of 14 days extra duty. 6. The applicant received negative counseling from his NCOs on 5 instances between 6 August 2001 to 4 March 2002 for failure to report (FTR). Additionally, he was advised that he was being recommended for UCMJ action. 7. A memorandum, Subject: Request for Legal Action, from the applicant’s commander to the Hunter Army Airfield Legal Center, dated 26 February 2002, shows the applicant’s company commander requested legal action due to the applicant’s receipt of company grade NJP under the provisions of Article 15, UCMJ. 8. DA Form 2627, dated 19 March 2002, shows the applicant's immediate commander recommended him for company grade NJP under the provisions of Article 15, UCMJ, for 4 violations of FTR to his appointed place of duty between on or about 6 August 2001 to on or about 28 January 2002. Note: the applicant did not complete block 3 or acknowledge the charges being imposed against him. Additionally, block 4 does not reflect whether punishment was imposed against the applicant. 9. The applicant received 5 negative counseling statements from his NCOs between 19 March 2002 to 20 May 2002 for a failed vehicle safety inspection and four offenses of FTR. 10. On 15 May 2002, the Georgia Department of Public Safety notified the applicant his driver’s license and privilege to operate a motor vehicle in the State of Georgia had been suspended. On 15 July 2002, his installation driving privileges were suspended. 11. On 11 July 2002, the applicant accepted company grade NJP under the provisions of Article 15, UCMJ, failing to go at the time prescribed to his appointed place of duty; accountability formation. His punishment consisted of reduction to the grade of Private (PV1)/ E-1, forfeiture of $257.00 pay per month for one month, and 14 days extra duty. 12. A memorandum for record, dated 17 July 2002, shows the applicant was administered a command directed urinalysis for the presence of a controlled substance. The test was administer based on the following situation: The applicant was apprehended on 16 July 2002 for driving with a suspended license. The applicant was entering Hunter Army Airfield through the Wilson Gate with two other Soldiers. When the applicant lowered his window at the gate to show his ID to the military police gate guard, the military police (MP) smelled what she believed to be marijuana. The MP searched both the vehicle and the Soldiers but failed to find any controlled substance or paraphernalia. The MP administered a field sobriety test to the applicant, which he failed. 13. On 6 August 2002, the applicant’s immediate commander was notified that the drug testing laboratory results determined the urine sample the applicant provided during a command directed urinalysis tested positive for Tetrahydrocannabinol (THC), cocaine, heroin, phenylcyclohexyl piperidine (PCP), lysergic acid diethylamide (LSD), and designer amphetamines such as methylenedioxyamphetamine (MDA, MDMA, and MDEA). 14. On 12 August 2002 and 15 August 2002, a commissioned officer administered two negative counseling statements to inform the applicant of his positive urinalysis results and that he was being recommend for NJP under the provisions of Article 15, UCMJ. 15. On 12 November 2002, the applicant's immediate commander notified him that he was recommending him for discharge under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c, for commission of a serious offense, with an under honorable conditions (general) characterization of service. His reason for the proposed actions: the applicant’s wrongful possessions of marijuana, disrespect towards a superior commissioned officer, and failure to report on several occasion. a. The applicant acknowledgement of receipt of the Memorandum of Notification. b. The applicant also acknowledged being provided the opportunity to consult with legal counsel. 16. On 12 November 2002, the applicant acknowledged he was advised by his consulting counsel of the contemplated action to separate him under the provisions of AR 635-200, chapter 14, for commission of a serious offense, and the rights available to him; and the effect of any action he took in waiving his rights. He acknowledged/ requested: a. He understood that if he had less than 6 years of total active service and reserve service at the time of separation, he was not entitled to have his case heard by an administrative separation board unless he was being considered for an under other than honorable conditions discharge. Further, he acknowledged he was making his request/election of his own free will and was not subject to any coercion whatsoever by any person. b. He elected not to submit statements on his own behalf and requested consulting counsel and representation by military counsel or civilian counsel at no expense to the government. c. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. 17. On 12 November 2002, a Hunter Legal Center Judge Advocate commissioned officer/Trial Counsel, reviewed the applicant’s separation packet and found it to be legally sufficient. 18. The applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense, with an under honorable conditions (general) characterization of service. His reason for the proposed actions: the applicant’s wrongful possessions of marijuana, disrespect towards a superior commissioned officer, and numerous violations of Article 86, failure to report. 19. The applicant’s intermediate commander concurred with the recommendation for discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense, with an under honorable conditions (general) characterization of service. 20. The separation authority approved the recommended discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense, with an under honorable conditions (general) characterization of service. 21. The applicant's DD Form 214 shows he was discharged on 26 November 2002, under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct, in the rank/grade of PV1/E-1. His service was characterized as under honorable conditions (general), and he received a separation code of JKQ and a reentry code of 3. He completed 2 years, 2 months, and 6 days of net active service. Additionally, his DD Form 214 does not list any decorations or awards. 22. There is evidence the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board’s 15-year statute of limitations. A letter, dated 23 May 2011, shows the ADRB notified the applicant it was determined he was properly and equitably discharged and his request for a change in the character and/or reason of his discharge was denied. 23. The ABCMR considered the applicant's request to upgrade his under other than honorable conditions characterization of service in ABCMR Docket Number AR20190012525, on 10 February 2021. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice and his application was denied. 24. Discharges under the provisions of Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 25. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. a. The applicant was discharged from active duty due to Misconduct. The applicant provided insufficient evidence of post-service achievements or letters of reference, that outweigh his misconduct, 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. b. The applicant’s narrative reason for separation and separation code were assigned based on the fact that he was discharged under the provisions of AR 635-200, chapter 14, due to misconduct – commission of a serious offense. Absent the misconduct, there was no reason to process him for separation. The narrative reason for separation and separation code associated with this type of discharge are "misconduct” with Separation Code JKQ. Based on a preponderance of evidence, the Board determined that the narrative reason for separation 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 to amend the decision of the ABCMR set forth in Docket Number AR20190012525 on 10 February 2021. 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. AR 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The 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. (2) Paragraph 3-7b stated 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. b. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 14-12c, states Soldiers are subject to action per this section for commission of a serious offense. Commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Courts-Martial. 3. AR 15-185 (ABCMR) states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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) AR20230001390 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1