ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 September 2019

	DOCKET NUMBER:  AR20170016668


APPLICANT REQUESTS:  an upgrade of 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 214 (Certificate of Release or Discharge from Active Duty)
*	DD Form 214 (Report of Separation from Active Duty)

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, in effect, he was told by his drill sergeants that he could 
upgrade his discharge if he took a chapter 14.

3.  The applicant’s service record shows:

   a.	He enlisted in the Regular Army on 8 November 1979.
   
   b.	He accepted nonjudicial punishment (NJP) on:
   
*	28 May 1980 for being disrespectful in language toward a superior 
noncommissioned officer
*	10 October 1980 for specification of possession of marijuana 
*	25 January 1981 for wrongfully appropriate a M35A2
*	21 February 1981 for specification of failure to obey lawful order
*	22 April 1981 for wrongfully having in his possession marijuana
   


   c.	On 5 March 1981, he was convicted by a summary court-martial of one 
specification for wrongfully having in his possession one ounce, more or less of 
marijuana and one specification of failing to obey a lawful order issued by a 
commissioned officer.  He was sentenced to confinement at hard labor for thirty days.  
The sentence was adjudged 4 March 1981.

   d.	On 14 May 1981, the applicant’s commander notified of him of his initiation of 
separation proceedings.
   
   e.	On 20 May 1981, after consulting with legal counsel, he acknowledged:
   
*	the rights available to him and the effect of waiving said rights
*	he may encounter substantial prejudice in civilian life if a general discharge 
under other than honorable conditions is issued to him
*	he may be ineligible for many or all benefits as a veteran under both Federal 
and State laws
*	he may apply to the ADRB or the ABCMR for upgrading
*	he is ineligible to apply for enlistment in the Army for 2 years after discharge
   
   f.	The separation authority approved the applicant's discharge on 20 July 1981, 
under the provisions of Army Regulation 635-200, Chapter 14-33b (1), and directed a 
general under other than honorable conditions.
   
   g.	On 22 July 1981, he was discharged from active duty under the provisions of AR 
635-200, Chapter 14-33b (1), for frequent involvement in incidents of a discreditable 
nature with civil or military authorities.  His DD Form 214 shows he received a 
characterization of service of general, under other than honorable conditions.  He 
completed 1 years, 7 months and 22 days of active net service.  

4.  There is no evidence that the applicant applied to the Army Discharge Review Board 
for an update of his discharge.   

5.  By regulation (AR 635-200), an honorable discharge is a separation with honor and 
entitles the recipient to benefits provided by law.  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

6.  The Board should consider the applicant's submissions 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 determined relief was not warranted.  Based upon the short term of honorable 
service completed prior to a pattern of misconduct and a lack of post-service character 
evidence submitted by the applicant to show that he has learned and grown from the 
events leading to his separation, the Board concluded that the characterization of 
service received at the time of discharge was appropriate.

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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the 
basic authority for the separation of enlisted personnel.  

   a. Paragraph 3-7a states an honorable discharge is a separation with honor and 
entitles the recipient to benefits provided by law.  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 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.

   c.  Chapter 14, of the version in effect at the time, established policy and prescribed 
procedures for separating members for misconduct.  Specific categories included minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, and 
convictions by civil authorities.  It provided that action would be taken to separate a 
member for misconduct when it was clearly established that rehabilitation was 
impracticable or was unlikely to succeed.  A general discharge was normally appropriate 
for a Soldier discharged under this chapter.  However, the separation authority could direct 
an honorable discharge if merited by the Soldier's overall record.  

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge review Boards for Correction of Military/Naval Records on 25 July 2018, 
regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief 
specifically granted from a criminal sentence.  Boards for Correction of Military/Naval 
Records may grant clemency regardless of the court-martial forum.  However, the 
guidance applies to more than clemency from a sentencing in a court-martial; it also 
applies to any other corrections, including changes in a discharge, which may be 
warranted on equity or relief from injustice grounds.



ABCMR Record of Proceedings (cont)	 AR20170016668

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