ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180005997


APPLICANT REQUESTS:  an upgrade of his general discharge to honorable

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 was not afforded due process and had never been in any trouble throughout his time in the service.  He was processed out of the service by his company commander for a first time offense for testing positive for the use of marijuana.  He recently found out that he could request an upgrade after he filed for VA benefits.

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

	a.  He enlisted in the Regular Army on 18 April 1990.

	b.  On 27 January 1992, the applicant accepted nonjudicial punishment (NJP) for wrongful use of marijuana between 3 December 1991 and 2 January 1992.  

	c.  On 24 February 1992, his immediate commander notified him that he was initiating a separation action against him under the provisions of Army Regulation (AR) 635-200, paragraph 14-12(c) commission of a serious offense.  The reason for the proposed actions was for testing positive for marijuana in a urine sample submitted on 2 January 1992.

d.  On 17 March 1992, he was advised by counsel of the basis for the 
contemplated action to separate him and its effects of the rights available to him, and the effect of any action taken by him in waiving his rights.  He acknowledged:

* he requested representation by military counsel
* he understood that he may encounter substantial prejudice in civilian life if a general discharge under other than honorable conditions is issued
* he understood if he received a discharge certificate/character of service which is less than honorable he could apply to the Army Discharge Review Board (ADRB) or the Army Board of Correction of Military Correction for upgrading
* he understood that an act of consideration by either board does not imply that his discharge would be upgraded

e.  The applicant provided a statement in his own behalf requesting that the chapter
be withdrawn so that he could serve to his expiration of service of 17 August 1992.  His duty performance was excellent and he could still be a great asset to his unit and the Army.

f.  Consistent with the chain of command recommendation, on 2 April 1992,
the separation authority approved the applicant’s discharge and directed he be issued a General Under Honorable Conditions Discharge.

g.  On 28 April 1992, he was discharged from active duty under the provisions of AR
635-200, Chapter 14-12c.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years and 11 days of net active service.  He was awarded or authorized the:

* South west Asia Service Medal with Bronze Service Star (2)
* National Defense Service Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge Grenade
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Kuwait Liberation Medal - Saudia Arabia

4.  By regulation, separations under the provisions of AR 635-200, Chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave..

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 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.  He was discharged for a criminal offense and was provided an under honorable conditions (General) characterization of service.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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.  AR 635-200 (Active Duty Enlisted Administrative Separations), 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 discharge under other than honorable conditions 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.  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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180005997


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