ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  26 February 2019

	DOCKET NUMBER:  AR20160016920


APPLICANT REQUESTS:  His general discharge be upgraded to an honorable 
discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for 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, 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.  Over the major portion of his career, his performance and service warranted an 
honorable discharge.   

	b.  He had problems when he was stationed overseas; he began to have difficulties 
adjusting to his family being back in the States.  He began using marijuana as a coping 
mechanism.  He requested reassignment but was denied.

	c.  He is not attempting to justify his actions; however, he believes that absent the 
marijuana usage, he was a productive and compliant soldier.  He loved the Army then 
and continues to do so today.  He thinks about his actions daily and wonders how 
different his life would be if he had made better decisions at that time. 

	d.  He hopes his 3 years, 2 months, and 26 days of honorable service will not be 
permanently marred, and that he not be denied the benefit of obtaining higher education 
as a possible means of upgrading his financial status and securing the future welfare of 
his children.

3.  The applicant enlisted in the Regular Army on 26 October 1994.  He was assigned to 
duty in Germany on 27 August 1996.  

4.  The applicant was awarded the Army Good Conduct Medal on 4 October 1997.

5.  The applicant received nonjudicial punishment (NJP), under the provisions of  
Article 15 of the Uniform Code of Military Justice (UCMJ), on:

*	18 February 1997, for failing to go to his place of duty
*	14 August 1997, for wrongfully using marijuana and two specifications of failing 
to go to his place of duty
*	10 December 1997, for wrongfully using marijuana 

6.  The applicant was afforded a mental status evaluation on 25 November 1997.  He 
was cleared for any administrative actions deemed appropriated.

7.  The applicant's commander notified the applicant on 22 December 1997 that he was 
initiating separation actions against the applicant to separate him from service under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
chapter 14, based on misconduct, specifically noting the applicant's second NJP for 
illegal marijuana use.

8.  After consulting with counsel on 23 December 1997, the applicant acknowledged the 
proposed separation actions and waived his rights.

9.  The applicant's commander formally recommended the applicant's separation under 
the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct – 
commission of a serious offense.  The appropriate authority approved the applicant's 
request for discharge on 13 January 1998, under the provisions of Army Regulation 
635-200, chapter 14, for misconduct – commission of a serious offense – abuse of 
illegal drugs.  He directed the applicant receive a general discharge.

10.  The applicant was discharged on 21 January 1998.  The DD Form 214 he was 
issued shows he was discharged under the provisions of Army Regulation 635-200, 
paragraph 14-12c(2) for misconduct, and his service characterization was under 
honorable conditions (general).

11.  The Board should consider the applicant's statement 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 was warranted after considering his service and the misconduct.

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 NOTES:  N/A

?
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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  

	a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides that 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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

	c.  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.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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 a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	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, Boards 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.



ABCMR Record of Proceedings (cont)	 AR20160016920
	
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