ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20180007868


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)

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 a young man when he entered the military and he did 
not make wise decisions.  He admits to his wrongdoings, but since leaving the Army he 
has been gainfully employed.  In an effort to qualify for healthcare coverage through the 
Veteran Administration, he is seeking to upgrade his discharge.

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

	a.  He enlisted in the Regular Army on 17 April 1979.

	b.  He served overseas in Germany from 15 October 1979 to 5 December 1981.

	c.  He accepted nonjudicial punishment, Uniform Code of Military Justice (UCMJ) 
Article 15, on 7 April 1981 for being absent with leave from 23 March 1981 to 24 March 
1981.

	d.  He accepted nonjudicial punishment UCMJ Article 15 on 21 July 1981 for:

*	wrongful possession 0.46 grams, more or less, of marijuana in hashish form
*	wrongful transfer of marijuana in hashish form
*	attempt to sell marijuana in hashish form
*	possessing two ration cards

	e.  On 20 February 1982, his immediate commander initiated a Bar to Reenlistment 
Certificate citing the applicant’s record of nonjudicial punishment, Article 15s.  He noted 
the applicant demonstrated continued misconduct with repeated counseling but did not 
display continued acceptable performance for retention.  The bar was approved on 
26 April 1972.

	f.  On 22 March 1982, the applicant was convicted by special court-martial for:

*	one specification of wrongful possession of 1 gram, more or less, of 
marijuana
*	one specification of wrongful use of marijuana
*	one specification of wrongful transfer of marijuana

The court sentenced him to perform hard labor without confinement for 3 months and 
forfeiture of $367 pay per month for 3 months.

	g.  He accepted nonjudicial punishment, UCMJ, Article 15 on 25 March 1982 for:

*	failure to go at a prescribed time to an appointed place of duty on two 
separate occasions 
*	violating a lawful general regulation by not registering and maintaining a valid 
vehicle registration
*	violating a lawful general regulation by not maintaining liability insurance 
coverage on vehicle registered to him
*	violating a lawful general regulation by installing or affixing one license plate 
on his privately owned vehicle which was registered to another vehicle
*	having one stolen license plate, of a value of about $5.00, the property of the 
U.S. Government

	h.  On 6 April 1982, his immediate commander notified him of his intent to initiate 
separation action against him in accordance with Army Regulation (AR) 635-200 
(Personnel Separation – Enlisted Personnel), Chapter 14-33(1) and(3), in effect at the 
time, due to patterns of misconduct, frequent incidents of discreditable nature with 
military authorities and shirking.

	i.  On 12 April 1982, the applicant acknowledged receipt of the commander’s intent 
to separate him.  Subsequently, he consulted with legal counsel and did not submit 
statements on his own behalf.  He acknowledged that:

*	he can expect to encounter substantial prejudice in civilian life if a general 
discharge under honorable conditions or a discharge under other than 
honorable conditions is issued to him 
*	he may ineligible for many or all benefits administered by the Veterans 
Administration and he may be deprived of rights and benefits as a Veteran 
under both Federal and State laws

	j.  Subsequent to the applicant's acknowledgement and consultation with counsel, 
his immediate commander initiated separation action against him due to patterns of 
misconduct, frequent incidents of discreditable nature with military authorities and 
established shirking.

	k.  Consistent with the chain of command’s recommendations, on 
20 April 1982, the separation authority reviewed the separation action; waived further 
rehabilitation requirements and approved the applicant's discharge for patterns of 
misconduct, frequent incidents of discreditable nature with military authorities and 
established shirking.  He directed an Under Other Than Honorable Conditions 
Discharge Certificate.

	l.  The applicant was discharged on 30 April 1982.  His DD Form 214 Certificate of 
Release or Discharge from Active Duty) shows he was discharged for misconduct with 
an under other than honorable conditions characterization of service.  He completed 3 
years and 8 days of net active service.

4.  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. 

5.  By regulation (AR 635-200), members are subject to separation for patterns of 
misconduct, frequent incidents of discreditable nature with military authorities and an 
established pattern of shirking..  An under other than honorable discharge is normally 
appropriate unless the discharge authority directs an honorable or general discharge if 
such is merited by the member’s overall record.

6.  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 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; however, he was remorseful with his application.  Based upon the lengthy 
pattern of misconduct within the applicant’s 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.

 



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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in 
effect at the time, provides for 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 soldier’s service generally has met the standards of acceptable conduct and 
performance of duty for Army personnel or is otherwise so meritorious that any 
characterization would be clearly in appropriate.

	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 soldier 
whose military record is satisfactory but not sufficiently meritorious to warrant an 
honorable discharge.

	c.  Chapter 14-33b(1) and (2) of this regulation prescribes policy and procedures for 
elimination of enlisted personnel for misconduct by reason of patterns of misconduct, 
frequent incidents of discreditable nature with military authorities and an established 
pattern of shirking.  An under other than honorable discharge is normally appropriate 
unless the discharge authority directs an honorable or general discharge if such is 
merited by the member’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 regarding equity, injustice or clemency determinations.  
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to an applicant.  
These factors include the severity of the misconduct and the length of time since the 
misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180007868

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