ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 October 2019

	DOCKET NUMBER:  AR20170004491

APPLICANT REQUESTS:  an upgrade to his under other than honorable conditions 
discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 4 (Enlistment/Reenlistment Document), page 4/1
*	Commander’s request for discharge page

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 he would like an upgrade to his current discharge in order to 
join the American Legion. 

3.  The applicant provides:

	a.  Page one of his initial enlistment contract showing the date of enlistment      
as 29 August 1989.

	b.  His chapter 10 request for discharge for the good of the Service- in lieu of trial 
by court martial, dated 19 May 1992.

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

	a.  He entered the Regular Army on 13 September 1989.  

	b.  His DD Form 458 (Charge Sheet), dated 14 May 1992 reflects court-martial 
charges were preferred against the applicant for one specification of wrongfully use 
of cocaine, a schedule I controlled substance.

	c.  He consulted with legal counsel on 18 May 1992 and subsequently requested 
discharge under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10, for of wrongfully use cocaine.  In his 
request, he acknowledged:  

*	the right to submit a statement on his own behalf, he elected not to submit 
a statement
*	the maximum punishment
*	he was guilty of the charge against him or of a lesser included offense 
which authorized a punitive discharge
*	if his discharge was approved, he may be discharged under conditions 
other than honorable and the effects of the discharge
*	he would be deprived of many or all Army benefits and that he may be 
ineligible for many or all benefits administered by the Veterans 
Administration and benefits as a veteran under both Federal and State 
laws

	d.  Consistent with the applicant and the chain of command recommendations, 
on 20 May 1992, the separation authority approved the applicant’s request for 
discharge.  He would be reduced to the lowest grade and issued an under other than 
honorable conditions discharge certificate.  

	e.  He was discharged from active duty on 2 June 1992, under the provisions of 
AR 635-200, chapter 10, for the good of the service, in lieu of trail by court-martial.  
His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his 
characterization of service is under other than honorable conditions.  His separation 
code (SPD) - KFS, this separation code has a corresponding reenlistment code (RE) 
of 3.  He completed 2 years, 8 months and 20 days of net active service this period 
with no lost time.

5.  There is no evidence the applicant has applied to the Army Discharge Review 
Board for review of his discharge within that board's 15-year statute of limitations. 

6.  By regulation AR 635-200, chapter 10 an individual who has committed an 
offense or offenses for which the authorized punishment includes a punitive 
discharge may submit a request for discharge for the good of the service.  The 
request may be submitted at any time after charges have been preferred.  An under 
other than honorable discharge certificate will normally be furnished an individual 
who is discharged for the good of the service.

7.  The Board should consider the applicant's petition and his 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 relief is 
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.  The 
applicant voluntarily requested a discharge in lieu of court-martial in which the 
charges were for using a control substance.  Based upon the lengthy period of 
honorable service completed prior to a single drug offense leading to his discharge, 
the Board agreed an Under Honorable Conditions (General) character of service is 
warranted.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department 
of the Army records of the individual concerned be corrected by reissuing him a DD 
Form 214 for the period ending 2 June 1992 showing his character of service as 
Under Honorable Conditions (General).


	  
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 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 (Personnel Separations-Enlisted Personnel), in effect at the time, 
sets forth the basic authority for the separation of enlisted personnel.  

		a.  Paragraph 3-7b states 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.  

		b.  Chapter 10-1, provides that a Soldier who has committed an offense or 
offenses, the punishment for which includes a bad conduct or dishonorable 
discharge, may submit a request for discharge for the good of the service.  The 
discharge request may be submitted after court-martial charges are preferred 
against the Soldier or where required, after referral, until final action by the court-
martial convening authority.  

3.  AR 600-200 (Enlisted Personnel Management System), paragraph 6-11, states 
when the separation authority determines that a Soldier is to be discharged from the 
service under than honorable conditions, he or she will be reduced to the lowest 
enlisted grade. ·Board action is not required for this reduction.  The commander 
having separation authority will, when directing a discharge under other than 
honorable conditions, or when directed by higher .authority, direct the Soldier to be 
reduced to private, E-1.  

4.  AR 635-5-1, table 2-3 (Separation program designator codes applicable to 
enlisted personnel), provides that a member who is discharged under the provision 
of AR 635-200, chapter 10, in lieu of trial by court martial will be assigned the 
Separation Code KFS.  This Separation Code has a corresponding RE Code of 3.

5.  AR 601-210 (Regular Army and Reserve Enlistment Program), governs eligibility 
criteria, policies, and procedures for enlistment and processing of persons into the 
Regular Army and the U.S. Army Reserve (USAR) for enlistment on or enlistment on 
or after the effective date of this regulation.

6.  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)	 AR20170004491

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