ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 September 2019

	DOCKET NUMBER:  AR20170003027


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

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 (U.S.))

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 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 requests an upgrade of his discharge from service.

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

	a.  He enlisted in the Regular Army (RA) on 15 January 2008.  He completed basic 
training and advanced individual training in September 2008. 

	b.  He held military occupational specialty 25P (Microwave Systems Operator 
/Maintainer).  He served in Korea from 28 September 2008 to 16 December 2009.  

	c.  On 29 February 2012, he received a negative counseling statement for testing 
positive for cocaine during a urinalysis conducted on 10 February 2012.

	d.  On [unknown date], his immediate commander notified the applicant of initiation 
of separation action under the provisions of Chapter 14, sub-paragraph 14-12c (2), 
Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), by 
reason of misconduct-abuse of illegal drugs, for using cocaine.  The unit commander 
recommended a general, under honorable conditions discharge.  He was advised of his 
rights.

	e.  On 13 June 2012, he acknowledged receipt of his immediate commander’s 
decision to recommend him for separation. 

	f.  On 14 June 2012, he consulted with legal counsel, was advised of the impact of 
the discharge action, and did not submit a statement in his own behalf.  He requested 
consulting counsel.  He acknowledged:

*	he could expect to encounter substantial prejudice in civilian life if a general 
discharge under honorable conditions was issued to him
*	understands that as a result of a discharge under other than honorable 
conditions he might be ineligible for many or all benefits as a veteran under 
both Federal and State laws and he could expect to encounter substantial 
prejudice in civilian life
*	understands that if he receives a discharge which is less than honorable, he 
may apply to the Army Discharge Review Board and/or the Army Board for 
the Correction of Military Records to upgrade his discharge; however, he 
realizes that consideration by either board does not imply that his discharge 
would be upgraded

	g.  On [unknown date], his immediate commander recommended that he be 
separated under the provisions of AR 635-200, chapter 14, sub-paragraph 14-12c (2), 
misconduct-abuse of illegal drugs, prior to his expiration term in service (ETS).

	h.  On 25 and 29 June 2012, his intermediate and senior commanders 
recommended approval for him to be separated from service characterized as general 
under honorable conditions under the provisions of AR 635-200, chapter 14, sub-
paragraph 14-12c (2) prior to his expiration of term of service.  The intermediate 
commanders stated he is ineligible to be transferred to the Individual Ready Reserve 
(IRR) in accordance with (IAW) AR 635-200, sub-paragraph 1-35b (8) (i).

	i.  On 5 July 2012, the separation authority approved the request for discharge under 
the provisions of AR 635-200, chapter 14, sub-paragraph 14-12c (2).  In addition, he 
directed the applicant be separated prior to his expiration of term of service with a 
general discharge and ineligible to be transferred to the IRR IAW AR 635-200, sub-
paragraph 1-35b (8) (i).

	j.  On 20 July 2012, he was discharged from active duty under the provisions of AR 
635-200, sub-paragraph 14-12c (2), with a general under honorable conditions 
characterization of service.  He completed 4 years, 6 months, and 6 days of active 
service.  His DD Form 214 shows he was awarded or authorized:

*	Army Superior Unit Award
*	National Defense Service Medal
*	Global War On Terrorism Service Medal
*	Korean Defense Service Medal
*	Army Service Ribbon
*	Overseas Service Ribbon

	k.  The applicant applied to the Army Discharge Review Board (ADRB) for an 
upgrade of his discharge on 31 March 2015.  On 5 August 2016, the ADRB determined 
the discharge was both proper and equitable and voted to deny relief.

4.  By regulation, AR 635-200, chapter 14 provides policy and prescribes procedures for 
separating personnel for misconduct because of minor disciplinary infractions, a pattern 
of misconduct, commission of a serious offense, to include abuse of illegal drugs, 
conviction by civil authorities, desertion, and absence without leave.

5.  In reaching its determination, the Board can consider the applicant’s petition and his 
service record IAW the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not 
warranted.  The applicant’s contentions were carefully considered.  The Board applied 
Department of Defense standards of liberal consideration to the complete evidentiary 
record and did not find any evidence of error, injustice, or inequity.  He did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  He was discharged for a criminal offense and was provided an under 
honorable conditions (General) characterization of service.  Additionally, the applicant 
failed to provide any mitigating reason for the misconduct.  Based upon the totality of 
the circumstances in the applicant’s case, 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.

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 three years after discovery of the alleged error or injustice.  
This provision of law also allows the Army Board for Correction of Military Records 
(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 (AR) 635-200 (Active Duty Enlisted Administrative Separations) in 
effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a, 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.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories included minor disciplinary infractions, a pattern of 
misconduct, and commission of a serious offense, to include abuse of illegal drugs, 
convictions by civil authorities and desertion or absence without leave.  Action will be 
taken to separate a member for misconduct when it is clearly established that 
rehabilitation is impractical or unlikely to succeed.  Army policy states that an under 
other than honorable conditions discharge is normally considered appropriate for a 
Soldier discharged for misconduct.

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 based on 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)	AR20170003027

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