ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	BOARD DATE:  19 September 2019

	DOCKET NUMBER:  AR20170014941


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)
*	self-authored statement
*	National Personnel Records Center Letter

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 states he fought, bled, and ate sand for his country.  He never got in 
any trouble, always met the standards in his military duty and assignments, had a tour 
in Kuwait, and served his country well for 3 years and 7 months.  He had an altercation 
with another Soldier who he thought was his best friend.  He caught the Soldier having 
an affair with his wife of 5 months and still he had to stand in formation next to him.  His 
spouse was his best friend.  He admitted that he smoked marijuana and then they 
kicked him out.  

3.  The applicant provides:

	a.  A self-authored statement, which states in summary, from January 1979 to 
August 2000 he was an active duty SPC/E-4 and Combat Engineer.  He earned a 
Southwest Asia Expeditionary Medal, Army Achievement Medal, and Good Conduct 
Medal and a few more.  He was stationed in 54th Engineer Battalion, Bamberg, 
Germany and had been a newly-wed for only five months.  After a rumor about his wife 
and another Soldier (his best friend) spread around the command, one morning he was 
relieved from duty early, so he went home, the door was locked, so he popped the lock 
and entered from another area of the house.  He found his wife and best friend in the 
hallway naked at 4:00 am.  He was charged with breaking and entering in his own 
home, destruction of government property, and attempted murder.  Above it all, he was 
made to stand next to him (the other Soldier) in formation every day.  So, he smoked 
marijuana when he knew that it would stay in his system to get him out of a bad 
situation fast and easy.  Looking back, it was not the best or the brightest thing to do.  
He would like an upgrade to his under other than honorable conditions discharge and 
present him with a more fitting discharge to the term he served.  

	b.  The NPRC, by letter, dated 23 August 2017 to the applicant, which informed him 
the NPRC has no authority to review and approve amendments or corrections to military 
records and they would forward his application to the Army Review Boards Agency.

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

	a.  He enlisted in the Regular Army on 6 January 1997.  

	b.  His service record is void of the specific facts and circumstances concerning the 
events, which led to his discharge.

   c.  On 23 June 2000, after being informed of his rights by legal counsel of the basis 
for the contemplated trial by court-martial, the maximum permissible punishment 
authorized under the Uniform Code of Military Justice, the possible effects of an under 
other than honorable conditions discharge, and the procedures and rights that were 
available to him.  He voluntarily requested discharge for the good of the service under 
the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10, in lieu of court martial for wrongful use and possession of 
marijuana.  In his request for discharge, he acknowledged his understanding that:

*	by requesting discharge, he was admitting guilt to the charge against him, or 
of a lesser included offense that also authorized the imposition of an 
undesirable discharge  
*	he acknowledged he understood that if his discharge request was approved 
he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and he 
could be deprived of his rights and benefits as a veteran under both Federal 
and State laws
*	he was advised he could submit any statements he desired in his own behalf, 

	d.  On 29 June 2000, consistent with the applicant’s request and his chain of 
command recommendations the separation authority approved the applicant’s 
discharge under the provisions of AR 635-200, Chapter 10, in lieu of court martial and 
directed that he be reduced to the lowest enlisted grade furnished an under other than 
honorable conditions discharge.  

	e.  The applicant was discharged on 15 July 2000.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he was discharged under the provisions 
of AR 635-200, Chapter 10 for the good of the service – in lieu of trial by court martial.  
His characterization of service is under other than honorable conditions.  He completed 
3 years, 6 months and 10 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, a member who has committed an offense for which the authorized 
punishment includes a punitive discharge may submit a request for discharge for the 
good of the service in lieu of trial by court-martial.  The request may be submitted at any 
time after charges have been preferred and must include the individual's admission of 
guilt.  Although an honorable or general discharge is authorized, a discharge under 
other than honorable conditions is normally considered appropriate.

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 reviewing the application and all supporting documents, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board found relief was warranted.  Based upon the justification for the discharge being 
shown as an isolated incident of marijuana possession and use after a period of 3 years 
of honorable service, the Board concluded that granting an upgrade request to Under 
Honorable Conditions (General) was appropriate.

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 the applicant a 
DD Form 214 showing his characterization 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 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a (Honorable discharge) states an honorable discharge is a 
separation with honor.  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 (General discharge) states a general discharge is a separation 
from the Army under honorable conditions.  When authorized, it is issued to a member 
whose military record is satisfactory but not sufficiently meritorious to warrant an 
honorable discharge.

	c.  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.  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.

ABCMR Record of Proceedings (cont)	AR20170014941

2

1