IN THE CASE OF: 

		BOARD DATE: 20 December 2023

		DOCKET NUMBER: AR20230004453


APPLICANT REQUESTS: upgrade of his under honorable conditions, general 
discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Service Documents
*	Separation Documents
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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:

     a.  He needs his discharge upgraded to honorable to purchase a home. He was 
always an excellent Soldier, expert marksman who was squared away and never gave 
up on any runs, road marches, etc. His absolute only downfall was smoking marijuana 
over 20 years ago. He only smoked off base and off duty to relieve pain and stress. He 
has greatly regretted these actions over his adult life and wishes he had made better 
choices. He loved being an infantryman and wanted nothing more than to serve his 
country and fight the Taliban beside his brothers. 

     b.  He is a single father of an 11-year-old, he has had him fulltime for five years. He 
has been renting the last few years and is currently looking to buy a home. He was 
preapproved for a loan through the Veterans Administration (VA) United. He found a 
home but was having issues with final approval. He has lived and struggled with his 
poor choices for 20 years. He lost his GI Bill and VA benefits which he greatly regrets. 
Please help him become a first-time homeowner, give his son a good life and upgrade 
his discharge to honorable. He lists other mental health as related to his request.
3.  The applicant enlisted in the Regular Army on 2 October 2001 for three years. His 
military occupational specialty was 11B (Infantryman).

4.  He served in Hawaii from 21 April 2002 through 4 August 2003.

5.  A Specimen Custody Document-Drug Testing, date collected 17 May 2003, shows a 
positive result with the applicant’s social security number.

6.  A Report of Mental Status Evaluation, dated 30 June 2003, shows the applicant had 
the capacity to understand and participate in proceedings, was mentally responsible 
and met the retention requirements. There was no evidence of psychiatric condition, 
which would prevent him from participating in any legal or administrative actions. 

7.  The applicant's immediate commander notified the applicant of his intent to initiate 
separation actions against him under the provisions of Army Regulation (AR) 635-200 
(Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of 
misconduct-commission of a serious offense. The reason for this action was the 
applicant’s wrongful use of marijuana between on or about 18 April and 17 May 2003. 
The applicant acknowledged receipt of the memorandum of separation on 1 July 2003.

8.  The applicant was afforded the opportunity to consult with legal counsel on 1 July 
2003 concerning the administration separation in accordance with AR 635-200. The 
importance of consulting with legal counsel, and the consequences of waiving the right 
were explain to him. He expressly declined the opportunity to consult with legal counsel.

9.  The applicant's commander formally recommended the applicant's separation from 
service under the provisions of AR 635-200, Chapter 14. The commander noted the 
applicant had been counseled, and through subsequent behavior, had demonstrated a 
lack of acceptance of rehabilitative measures. His chain of command recommended the 
applicant’s separation with an under honorable conditions (general) discharge. The 
separation packet was legally sufficient. 

10.  The separation authority approved the recommended discharge and directed the 
issuance of an under honorable conditions characterization of service.

11.  Accordingly, the applicant was discharged on 11 August 2003. His DD Form 214 
shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, by 
reason of misconduct. He was assigned separation code JKK with reentry code 4. His 
service was characterized as under honorable conditions (general). He completed 
1 year, 10 months, and 10 days of net active service. His awards include the: National 
Defense Service Medal, Army Service Ribbon, and the Overseas Service Ribbon.

12.  The applicant provides a copy of his DD Form 214 and several service and 
separation documents as discussed above.

13.  Soldiers are subject to separation under Chapter 14, for misconduct-commission of 
a serious offense. A discharge under other than honorable conditions is normally 
appropriate under this chapter. However, the separation authority may direct a under 
honorable conditions (general) discharge if such is merited by the Soldier's overall 
record.

14.  On 13 July 2023, an agency staff member, requested the applicant provide medical 
documents that support his mental health issues. As of 14 August 2023, no response 
was provided.

15.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency guidance.  

16.  MEDICAL REVIEW:

    a.  Background: The applicant is requesting an upgrade of his under honorable 
conditions, general discharge to honorable. He selected other mental health on his 
application as related to his request.
    b.  The specific facts and circumstances of the case can be found in the ABCMR 
Record of Proceedings (ROP). Below is a summary of information pertinent to this 
advisory: 
*	Applicant enlisted in the RA on 2 October 2001.
*	A Specimen Custody Document-Drug Testing, date collected 17 May 2003, 
shows a positive result with the applicant’s social security number.
*	Applicant's immediate commander notified the applicant of his intent to initiate 
separation actions against him under the provisions of Army Regulation (AR) 
635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by 
reason of misconduct-commission of a serious offense. The reason for this action 
was the applicant’s wrongful use of marijuana between on or about 18 April and 
17 May 2003.
*	Applicant was discharged on 11 August 2003. His DD Form 214 shows he was 
discharged under the provisions of AR 635-200, paragraph 14-12c, by reason of 
misconduct. He was assigned separation code JKK with reentry code 4. His 
service was characterized as under honorable conditions (general). 

    c.  Review of Available Records Including Medical:
The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this 
case. Documentation reviewed included the applicant’s completed DD Form 149, DD 
Form 214, ABCMR Record of Proceedings (ROP), and documents from his service 
record and separation. The VA electronic medical record and DoD health record were 
reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this 
section should not be interpreted as lack of consideration. 
    d.  The applicant states he needs his discharge upgraded to honorable in order to 
purchase a home. He is a single father of an 11-year-old and has had his son full-time 
for five years. He has been renting the last few years and is currently seeking to 
purchase a home. He was preapproved for a loan through the Veterans Administration 
(VA) United. He found a home but was having issues with final approval. He has lived 
and struggled with his poor choices for 20 years. He lost his GI Bill and VA benefits 
which he greatly regrets. He requests the board’s help in becoming a first-time 
homeowner and giving his son a good life by upgrading his discharge to honorable. He 
reports he was an excellent soldier; his only downfall was smoking marijuana over 20 
years ago. He only smoked off base and off duty to relieve pain and stress. He has 
greatly regretted these actions over his adult life and wishes he had made better 
choices. He loved being an infantryman and wanted nothing more than to serve his 
country and fight the Taliban beside his brothers. 
    e.  Due to the period of service, no active-duty electronic medical records were 
available for review. A Mental Status Evaluation as part of the separation process, 
dated 30 June 2003, shows the applicant had the capacity to understand and participate 
in the proceedings, was mentally responsible and met retention requirements. There 
was no evidence of a psychiatric condition, which would prevent him from participating 
in any legal or administrative actions. No VA electronic medical records were available 
for review and the applicant is not service connected. In addition, the applicant did not 
submit any medical documentation post-military service substantiating his endorsement 
of other mental health issues on his application.
    f.  Based on the information available, it is the opinion of the Agency Behavioral 
Health Advisor that there is insufficient evidence to support the applicant had a 
behavioral health diagnosis that mitigates his misconduct. However, per Liberal 
Consideration guidelines, applicant’s endorsement of other mental health as related to 
his request merits consideration by the board. 
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 selected other mental health 
as related to his request on his application.  

    (2)  Did the condition exist or experience occur during military service? Yes. The 
applicant selected other mental health as related to his request but did not identify any 
behavioral health condition. 

    (3)  Does the condition or experience actually excuse or mitigate the discharge? No. 
There is insufficient evidence of any mitigating BH conditions. There is no evidence of 
any in-service BH diagnoses, and the VA has not service-connected the applicant for 
any BH condition. And while the applicant checked off other mental health on his 
application as related to his request, he did not provide any medical documentation 
evidencing any BH diagnosis.


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 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 the medical review, the Board 
concurred with the advising official finding insufficient evidence to support the applicant 
had a behavioral health diagnosis that mitigates his misconduct. The Board noted the 
advising opine found no evidence of any in-service BH diagnoses, and the VA has not 
service-connected the applicant for any BH condition. The Board found insufficient 
evidence of in-service mitigating factors to overcome the misconduct.

2.  The Board commends the applicant on his post service achievements and his efforts 
of being a positive role model for his 11-year-old son as a single father. However, the 
Board agreed the applicant was discharged for misconduct and was provided an under 
honorable conditions (General) characterization of service.  The Board agreed that 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 denied relief.

3.  This board is not an investigative body.  The Board determined despite the absence 
of the applicant’s supporting records, they agreed the burden of proof rest on the 
applicant, however, he did not provide any supporting medical documentation and his 
service record has insufficient evidence to support the applicant contentions of a 
behavioral diagnoses.



?
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, USC, Section 1556, 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.  Army Regulation (AR) 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 of this regulation 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 under other than honorable conditions 
discharge was normally considered appropriate. However, the separation authority 
could direct a general discharge if merited by the Soldier's overall record.

4.  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 
Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records 
(BCM/NR) when considering requests by Veterans for modification of their discharges 
due in whole or in part to: mental health conditions, including post-traumatic stress 
disorder; 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. 

5.  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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230004453


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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