ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  18 April 2019

	DOCKET NUMBER:  AR20180000044


APPLICANT REQUESTS:  The applicant requests his under honorable conditions 
(general) discharge be upgraded to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214  (Certification Release of Discharge)

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 feels that he was immature at the time of the discharge and 
it has been over 20 years since the situation happened.

3.  On 13 January 1994, the applicant joined the Regular Army at the age of 19.  He 
completed Basic Training (BCT), Advanced Individual Training (AIT), and was awarded 
the MOS of 14S (Avenger Crewmember).  The highest rank the applicant obtained was 
Private First Class on 1 September 1994.

4.  While Stationed at Fort Stewart, the applicant received three 3 Article 15s:

*	On 26 October 1995 for Failure to go to formation
*	On 26 February 1996 for wrongful use of a controlled substance (marijuana)
*	On 17 April 1996 for absence without authority (0700 [formation])

5.  On 12 August 1996, the applicant’s immediate commander notified him that he was 
being recommended for separation in accordance with AR 635-200, Chapter 14 for 
pattern of misconduct for drug abuse.  The applicant acknowledged the command’s 
intent to discharge him, acknowledged his available rights and spoke with legal counsel.  
He was advised his available rights and the basis for discharge under the provision of 
Army Regulation 635-200, chapter 14.  He acknowledged he could be ineligible for 
many or all Army and/or Veterans Affairs Benefits and did not submit statements in his 
own behalf.

6.  On 6 September 1996, the appropriate separation authority approved the separation 
issuing the applicant and under honorable conditions (general) discharge and waived 
rehabilitation according to AR 635-200 Para 1-18.

7.  On 17 September 1996, he was discharged accordingly, his service was 
characterized as Under Honorable Conditions (general) for misconduct.  His DD 214 
shows he completed 2 years, 8 months and 5 days of total active service and was 
awarded or authorized: 

*	National Defense Service Medal
*	Army Service Ribbon
*	Marksman for the M-16 rifle and expert for the grenade.  Of Note, block 18 of the 
DD214 states that the applicant did not complete first full term of service.

8.  AR 635-200, Chapter 14 separates members who demonstrate or display patterns of 
misconduct, as evidenced by his multiple instances of misconduct and counseling.  
Paragraph 1-18 states, Commanders will insure that adequate counseling and 
rehabilitative measures have been taken before initiating action to separate a member. 
Waiving rehabilitation applies when it would not be in the best interest of the Army as it 
would not product a quality Soldier.

9.  His records shows his misconduct started when he was 20 years old and 
approximately 1 year and 4 months after he reported to his first duty assignment where 
over a 5 month period he failed to go to formation twice and wrongfully used marijuana.  
As a result, the immediate commander initiated his separation. 

10.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.  

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  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 record, 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 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.


ADMINISTRATIVE NOTE(S):

Not Applicable


REFERENCES:

1.  Title 10, U.S. Code, 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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  
    
      a.  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.  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 establishes policy and prescribes procedures for separating 
members for misconduct.  Action will be taken to separate a member for misconduct 
when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  
A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter; 
however, the separation authority may direct a general discharge if such is merited by 
the Soldier’s overall record.  Only a general court-martial convening authority may 
approve an honorable discharge or delegate approval authority for an honorable 
discharge under this provision of regulation.

 	d.  Paragraph 14-12c provides for the separation when there is a pattern of 
misconduct involving acts of drug abuse 

     e.  Paragraph 1-18 waives the rehabilitation transfer because it would not be in the 
best interest of the Army as it would not product a quality Soldier

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and 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.  
	
	 a.  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 on the basis of equity, injustice, or clemency 
grounds, Boards 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.  
	
      b.  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)	 AR20180000044

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