ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  6 August 2019

	DOCKET NUMBER:  AR20180004836


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record).  

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 does not think his case was determined by his military 
history.  The lawyer told him the amount that he came up positive on could have come 
from money passed to me from a store.  He feels his record will speak for itself.  

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

	a.  On 14 March 1976, he enlisted in the Army National Guard.  He entered active 
duty for training (ADT) on 14 March 1976 and was honorably released from ADT on 
19 June 1976.  He was issued a DD Form 214 (Report of Separation from Active Duty).  

	b.  On 4 April 1979, he enlisted in the Regular Army (RA).  He served in Germany 
from 23 September 1981 to 19 September 1984.  He reenlisted on 1 April 1983.

   c.  He again reenlisted in the RA on 15 January 1986, and again served in Germany 
from 21 March 1986 to 20 March 1989.  

	d.  He was promoted through the ranks and attained the rank/grade of sergeant 
(SGT)/E-5 on 6 November 1985. 

	e.  On 11 December 1989, the commander notified the applicant he was initiating 
action to separate him under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel), paragraph 14-12c (Commission of a 
Serious Offense) for testing positive on 18 October 1989 for wrongful use of cocaine.  

	f.  On 12 December 1989, the applicant acknowledged he had received a copy of 
the memorandum, dated 11 December 1990, notifying him of the discharge action 
against him with enclosure.  He did not indicate whether or not he desired to consult 
with consulting counsel or whether or not he desired to submit statement in his own 
behalf; but, he did indicate that he desired a hearing before an administrative board.

	g.  On 11 December 1989, the immediate commander initiated separation action 
against the applicant under the provisions of chapter 14 f AR 635-200 for the 
commission of a serious offense (testing positive for wrongful use of cocaine).  

	h.  On 4 January 1990, the intermediate commander recommended approval of the 
administrative discharge proceedings pertaining to the applicant due to commission of a 
serious offense.  He recommended an under other than honorable conditions discharge.

	i.  On 9 January 1990, the senior commander recommended approval for separation 
with an under other than honorable conditions discharge.  The senior commander 
indicated that the applicant had requested an administrative separation board.

	j.  On 24 January 1990, a general officer (GO) in his chain of command 
recommended approval for separation with an under other than honorable conditions 
discharge.  The GO indicated that the applicant had requested an administrative 
separation board.

   k.  On 22 March 1990, an administrative separation board convened at Fort Bragg, 
NC, with the applicant and his defense counsel present, to consider whether the 
applicant should be retained or separated.  The findings and recommendations by the 
administrative separation board are unavailable for the Board to review.  

	l.  On 19 March 1990, the separation authority approved the administrative boards 
findings and recommendations for the applicant’s separation under the provisions of 
paragraph 14-12c, Chapter 14, AR 635-200, for Misconduct - Abuse of Illegal Drugs.  
He ordered the applicant separated with characterization of service as under other than 
honorable conditions and will be reduced to the enlisted grade of E-1  

	m.  On 10 May 1990, the applicant was discharged from active duty under the 
provisions of AR 635-200, chapter 14-12c, and issued a under other than honorable 
conditions discharge.  His DD Form 214 (Certificate of Release or Discharge from 
Active Duty) reflects that the completed 11 years, 1 month, and 7 days of active service.  
It also shows that he was awarded or was authorized the:

*	Army Service Ribbon
*	Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Overseas Service Ribbon
*	Army Good Conduct Medal (3rd Award)
*	Army Achievement Medal
*	Noncommissioned Officer Professional [Development] Ribbon
*	Driver Badge with Bar

	o.  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. 

4.  By regulation, members are subject to separation for commission of a serious 
military or civil offense, if the specific circumstance of the offense warrant separation 
and a punitive discharge would be authorized for the same or closely related offense 
under the Uniform Code of Military Justice.  

5.  In reaching its determination, the Board can 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 determined that partial relief was warranted.  Based upon the misconduct which 
resulted in the applicant’s separation and a lack of character evidence submitted by the 
applicant to show that he has learned and grown from the events leading to his 
discharge, the Board concluded that the characterization of service received at the time 
of discharge was appropriate.

However, the Board did note that the applicant had a prior period of honorable service 
which is not currently reflected on his DD Form 214 and recommended that change be 
completed to more accurately depict his military service.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by adding the 
following additional statement to block 18 (Remarks) of his DD Form 214:  “Continuous 
honorable active service from 4 April 1979 until 14 January 1986.”
2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrading the characterization of his discharge.
	  
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 by not sufficiently meritorious to warrant an 
honorable discharge.

	c.  Paragraph 14-12c (Commission of a Serious Offense) states members are 
subject to separation for commission of a serious military or civil offense, if the specific 
circumstance of the offense warrant separation and a punitive discharge would be 
authorized for the same or closely related offense under the Uniform Code of Military 
Justice.

3.  Army Regulation 635-8 (Separations Processing and Documents), currently in effect, 
provides for the preparation and distribution of the DD Form 214.  It states for item 18 
(Remarks) to Soldiers who have previously reenlisted without being issued a DD Form 
214 and are separated with any characterization of service except “Honorable”, enter 
“Continuous Honorable Active Service from” (first day of service for which DD Form 214 
was not issued) until (date before commencement of current enlistment).

4.  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.  

ABCMR Record of Proceedings (cont)	 AR20180004836

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