ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


                   IN THE CASE OF:

                   BOARD DATE: 25 February 2019 

                   DOCKET NUMBER:  AR20160014135


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

DD Form 293 (Application for the Review of Discharge from the Armed Forces of the 
United States).

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States 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 in effect, he would like an upgrade of his general, under 
honorable conditions discharge to an honorable discharge.

3.  A review of the applicant’s service record shows the following:

	a.  On 25 January 1989, he underwent a mental health evaluation.  His                                    
DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal behavior, 
was fully alert and oriented, with an unremarkable mood and affect, and he had clear 
thought process, normal thought content, and good memory.  The physician assistant 
endorsed the form confirming he had the mental capacity to understand and participate 
in board proceedings.

	b.  On 10 February 1989, the applicant’s immediate commander notified the 
applicant of his intent to initiate separation action against him under the provisions of 
paragraph 14-12c, of AR 635-200.  He cited his reasons as the applicant's wrongful 
possession and distribution of cocaine.  He advised the applicant of his rights and 
informed him that the final decision in his case rested with the separation authority, and 
he was recommending an under other than honorable conditions discharge.

	c.  The applicant acknowledged receipt of the notification of his proposed separation 
action.  He consulted with counsel who advised him of the basis for the contemplated 
separation and its effects, the rights available to him and the effect of a waiver of his 
rights.  He made the following choices: 

*	he understood he was being considered for a separation under other than 
honorable conditions
*	he requested consideration of his case and a personal appearance before an 
administrative separation board
*	he elected not to submit statements on his behalf
*	he could expect to encounter substantial prejudice in civilian life if an under 
other than honorable conditions discharge was issued
*	he may be ineligible for many or all benefits as a veteran under both Federal 
and State laws

   d.  Subsequent to this acknowledgement, the applicant’s immediate commander 
initiated separation action against him in accordance with paragraph 14-12c, of AR 635-
200.  He cited his reasons as the applicant's wrongful possession and distribution of 
cocaine.  His intermediate commander recommended approval of a general, under 
honorable conditions discharge.

   e.  On 24 March 1989, the separation authority approved the applicant’s separation 
in accordance with paragraph 14-12c, of AR 635-200, and ordered the applicant 
discharged and issued a General Discharge Certificate and his service would be 
characterized as under honorable conditions.

   f.  On 28 March 1989, the applicant requested an opportunity to submit additional 
matters for consideration by the separation authority, based on the separation 
authority’s decision to issue a General Discharge Certificate, instead of a discharge 
under other than honorable conditions.  He had 7 days to provide the additional 
statements.  

   g.  On 12 April 1989, the separation authority considered the separation of the 
applicant in accordance with paragraph 14-12c, of AR 635-200 and his decision 
remained the same.  

4.  The applicant was discharged on 20 April 1989.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he was discharged under the provisions 
of AR 635-200, paragraph 14-12c with a general, under honorable conditions 
characterization of service.  He served 5 years and 7 months of active creditable 
service.  

5.  Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority 
for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 
procedures for separating members for misconduct.

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The Board agreed the under honorable conditions 
characterization is appropriate resulting from the misconduct in which the applicant was 
discharged.

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.

ADMINISTRATIVE NOTE:  Not applicable.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.
2.  AR 635-200 in effect at the time, set forth the basic authority for the separation of 
enlisted personnel.

   a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities.  Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely 
to succeed.  A discharge under other than honorable conditions is normally appropriate 
for a Soldier discharged under this chapter.  However, the separation authority may 
direct a general discharge if such is merited by the Soldier’s overall record.  Only a 
general court-martial convening authority may approve an honorable discharge or 
delegate approval authority for an honorable discharge under this provision of the 
regulation.

   b.  Paragraph 3-7(a) states that an honorable discharge is given when the quality of 
the Soldier’s service has generally met standards of acceptable conduct and duty 
performance.

3.  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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.


ABCMR Record of Proceedings (cont)	AR20160014135

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