ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 September 2019

	DOCKET NUMBER:  AR20170012227


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record).
*	personnel appearance before the Board

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Discharge Review Board 
(ADRB) in Docket Number AR20130003534 on 7 October 2013. 

2.  The applicant states he believes that his discharge to be unjust because of personal 
problems that he was experiencing at the time.

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

	a.  He enlisted in the Regular Army on 17 March 1999.

	b.  DD Form 458 (Charge Sheet), on 1 October 2001 the applicant was charged with 
one specification of wrongful use of cocaine and one specification of wrongful use of 
marijuana.

	c.  On 22 October 2001, the applicant requested to be discharged under provisions 
of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), 
chapter 10 (Discharge In Lieu of Trial by Court Martial).  He understood that a court 
martial conviction would harm him in civilian life and wanted to be able to provide for his 
family.  If he were convicted and had to be confined, it would keep him from his family.  
He requested the convening authority to consider discharging him with an honorable or 
general under honorable conditions characterization of service because his problem 
stemmed from drug and alcohol abuse.  His performance was outstanding.  

	d.  On 22 October 2001, the applicant acknowledged:

*	he voluntarily made the request for discharge in lieu of court martial
*	he was not coerced
*	he understood the implications of the discharge
*	he received legal counsel
*	he was guilty of the offense(s) or a lesser included offense(s)
*	he understood that he could be furnished an under other than honorable 
discharge
*	he may be deprived of rights and benefits as a veteran under both Federal 
and State laws
*	he may encounter prejudice in civilian life
*	he understood that an upgrade of his discharge was not automatic and he 
may apply to the Army Discharge Review Board or the Army Board for 
Corrections of Military Records
*	he understood that the act of consideration by either Board did not imply the 
discharge would be upgraded
*	he understood that he could withdraw the request for discharge at any time 
up until his discharge
*	he submitted statement(s) in his own behalf
*	he requested a separation physical

   e.  The unit commander recommended approval of the applicant’s request for 
discharge in lieu of trial by court martial and be furnished an under other than honorable 
conditions characterization of service.   The commander also stated that the applicant’s 
drug addiction would do more harm to the morale of the unit and influence on the 
younger Soldiers.  The document was not dated.

	f.  On 25 October 2001, the battalion commander recommended approval of the 
applicant’s request for discharge in lieu of trail by court martial and be furnished an 
under other than honorable conditions characterization of service.

	g.  The brigade commander recommended approval of the applicant’s request for 
discharge in lieu of trial by court martial and be furnished an under other than honorable 
conditions characterization of service.  The brigade commander further stated that the 
applicant had been previously punished for drug usage on previous occasion(s) and he 
was a below average Soldier with a negative presence in the unit.  The document was 
not dated.

	h.  On 30 October 2001, the division commander recommended approval of the 
applicant’s request for discharge in lieu of trial by court martial and be furnished an 
under other than honorable conditions characterization of service.

	i.  On 5 November 2001, the legal review recommended approval of the applicant’s 
request for discharge in lieu of trial by court martial and be furnished an under other 
than honorable conditions characterization of service.

	j.  On 5 November 2001, the convening authority approved the discharge of the 
applicant under provisions of AR 635-200, chapter 10 and that he be furnished an under 
other than honorable conditions characterization of service.

	k.  He was discharged from active duty on 16 November 2001 with an under other 
than honorable conditions characterization of service under provisions of AR 635-200, 
chapter 10.  His DD Form 214 shows that he completed 2 years and 8 months of active 
service.

4.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his 
discharge.  On 7 October 2013, the ADRB determined his discharge was proper and 
equitable, and denied his request. 

5.  By regulation AR 635-200, an individual whose conduct has rendered him triable by 
court-martial under circumstances which could lead to a bad conduct or dishonorable 
discharge may submit a request for discharge for the good of the service.  The request 
for discharge may be submitted at any time after court-martial charges are preferred 
against him. 

6.  By regulation 635-200, a Soldier who has committed an offense or offenses, the 
punishment for which under the Uniform Code of Military Justice and the manual of 
courts martial includes a bad conduct or dishonorable discharge may submit a request 
for discharge in lieu of trial by court martial.

7.  By regulation 15-185 (ABCMR), applicants do not have a right to a hearing before 
the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice 
requires.

8.  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:

The applicant's request for a personal appearance hearing was carefully considered.  In 
this case, the evidence of record was sufficient to render a fair and equitable decision.  
As a result, a personal appearance hearing is not necessary to serve the interest of 
equity and justice in this case. 



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.  Based upon the offenses of a criminal nature, the Board agreed that the 
applicant's discharge characterization was warranted as a result of 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 to amend the decision of the ABCMR set forth in Docket 
Number AR20130003534 on 7 October 2013.

	  
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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 stated a Soldier who has committed an offense or offenses, the 
punishment for which under the Uniform Code of Military Justice and the manual of 
courts martial includes a bad conduct or dishonorable discharge may submit a request 
for discharge in lieu of trial by court martial.  A discharge under other than honorable 
conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court 
martial.  However, the separation authority may direct a general discharge is such is 
merited by the Soldier’s overall record during the current enlistment.

	b.  Paragraph 3-7a (Honorable Discharge) states 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.

	c.  Paragraph 3-7b (General Discharge) is a separation from the Army under 
honorable conditions.  When authorized, it is issued to a Soldier whose military records 
is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

2.  AR 15-185 (ABMCR) states board members will review all applications that are 
properly before them to determine the existence of an error or an injustice.  The 
ABMCR decides cases on the evidence of record.  It is not an investigative body.  The 
ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a 
hearing before the ABCMR.  The Director or the ABMCR may grant a formal hearing 
whenever justice requires.  

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 the 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, 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 upgrade service characterization. 

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170012227

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