IN THE CASE OF:  

		BOARD DATE:  16 July 2020

		DOCKET NUMBER:  AR20160019520


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions discharge to a general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Medical Documentation

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the 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 stated his diagnosed brain damage and mental defect were not known 
or considered as mitigating evidence by the discharge board and were the root cause of 
misconduct discharge.  He provides a 19 January 2007, 24-page medical report signed 
by a neuropsychologist in support of his claim.  It contains the results of a 
neuropsychological evaluation conducted at the request of the applicant’s counsel.

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

	a.  He enlisted in the Regular Army on 21 September 1982.  He was awarded 
military occupational specialty (MOS) 94B (Food Service Specialist).

	b.  The applicant accepted nonjudicial punishment (NJP) on/for:

*	10 August 1983, failure to have his room prepared for inspection
*	30 June 1983, insubordinate conduct toward a noncommissioned officer
*	30 May 1984, wrongful use of marijuana; punishment included reduction from 
private two/PV2 to private/E-1, forfeiture of $156, 14 days extra duty and 
restriction

	c.  On 16 August 1984, the applicant's commander advised the applicant in writing of 
his intent to separate the applicant under the provisions of Army Regulation (AR) 
635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Separation for 
Misconduct), paragraph 14-12b (A Pattern of Misconduct).  The commander's reason 
for this action was the applicant’s pattern of misconduct.

	d.  On 17 August 1984, he consulted with counsel and acknowledged counsel had 
explained the basis for and the effects of the separation action; counsel also advised 
the applicant of his rights.  The applicant waived his right to appear before and have his 
case considered by a board of officers; he also elected not to submit statements in his 
own behalf.  

	e.  Following his acknowledgement consultation with counsel, his immediate 
commander initiated separation action against him.  His chain of command 
recommended approval. 

	f.  On 21 August 1984, the separation authority approved the commander's 
recommendation and directed the applicant's under other than honorable conditions 
discharge.

	g.  On 20 December 1984, the applicant was discharged accordingly.  The 
applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 
he was discharged under the provisions of chapter 14 of AR 635-200 with an under 
other than honorable conditions discharge.  He completed 2 years and 3 months of 
active service and he was awarded or authorized the Army Achievement Medal (1st 
Award), Army Service Ribbon, and Sharpshooter (M16) Marksmanship Qualification 
Badge.

	h.  There is no indication the applicant applied to the Army Discharge Review Board 
for an upgrade of his discharge within that board's 15-year statute of limitations.

4.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s medical records in the Armed Forces Health Longitudinal 
Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following 
findings and recommendations: 

a.	While liberal consideration guidance was applied, documentation is insufficient to 
determine the applicant had a cognitive disorder that may have resulted in misconduct.  
Accordingly, an upgrade is not recommended.

b.	Due to the period of service, active duty electronic medical records are void.
   
c.	The applicant is not service connected.  The applicant had Compensation and 
Pension (C&P) exams in 2017 for a skin condition and in 2018 for a gastroenterology 
condition.  The record is void of behavioral health encounters, medications, consults, or 
C&P.

d.	The applicant submitted a neuropsychological exam for a 1987 legal issue.  
While the provider stated there was a “brain dysfunction” that was believed to have 
impacted functioning “throughout his life” and prior to a November 1987 arrest, the 
provider did not provide a diagnosis.  Furthermore, even if a diagnosis was made, 
documentation is insufficient to determine whether or not a cognitive disorder was 
present in-service.  Rather, the applicant’s in-service aptitude scores indicate average 
to superior functioning countering the assertion he had a “brain dysfunction” in-service 
leading to the misconduct.

5.  By regulation (AR 635-200), 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.  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.

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

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined relief was not warranted.  Based upon the short term of honorable 
service completed prior to a pattern of misconduct, as well as the findings and 
recommendations of the medical advisor, the Board concluded there was insufficient 
evidence of an error or injustice which would warrant a change to the characterization of 
service.



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, United States Code, 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 Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  AR 635-200 (Personnel Separations – Enlisted Personnel, in effect at the time, 
prescribed policies and procedures for the administrative separation of enlisted 
personnel.



	a.  Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a 
separation with honor.  The honorable characterization was appropriate when the 
quality of the Soldier's service generally met the standards of acceptable conduct and 
duty performance.

	b.  Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to 
include for a pattern of misconduct and the commission of a serious offense.  Paragraph 
14-12b stated members were subject to separation under this provision when they 
showed a pattern of misconduct involving acts of discreditable involvement with civil or 
military authorities, and/or displayed conduct that was prejudicial to good order and 
discipline.

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 (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.  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.  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)	 AR20160019520


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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