ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20180009479


APPLICANT REQUESTS: an upgrade of his characterization of service from under 
honorable conditions to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)

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 request an upgrade of his characterization of service to 
receive benefits such as the Post 9/11 G.I. Bill to further his education.

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

	a.  He enlisted on 7 October 1992, in to the Regular Army (RA). 

	b.  On 18 June 1993, the applicant accepted nonjudicial punishment (NJP) under the 
provisions of Article 15 for one specification each of missing formation, sleeping on duty 
and failure to shave.

	c.  On 18 January 1994, the applicant accepted NJP under the provisions of 
Article 15 for one specification of failure to be at prescribed place of duty.  His 
punishment consisted in part of reduction to private/E-2.

	d.  On 30 June 1994, the applicant accepted NJP under the provisions of Article 15 
for one specification of failure to follow a lawful order.

	e.  On 26 January 1995, the applicant accepted NJP under the provisions of Article 
15 for one specification of wrongfully using marijuana, a controlled substance.

	f.  His immediate commander notified him (unknown date) that action was being 
initiated to separate him under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel), chapter 14 (Separation for Misconduct), 
paragraph 14-12b (Patterns of Misconduct), based on his reception of NJP, for wrongful 
use of marijuana, failure to be at his appointed places of duty and disobeying a lawful 
order.

	g.  On 7 February 1995, the applicant acknowledged the commander’s intent to 
separate him under the provisions of AR 635-200, chapter 14-12b.  He sought legal 
counsel and acknowledged:

*	he has been advised by consulting counsel of the basis for the contemplated 
action to separate him and its effects
*	the rights available to him
*	the effect of any action taken in waiving his rights
*	that he may expect to encounter substantial prejudice in civilian life if a 
general discharge under honorable conditions is issued to him

	h.  Subsequent to the applicant's acknowledgement, on 7 February 1995, the 
immediate commander formally initiated separation action against the applicant under 
the provisions of chapter 14 of AR 635-200, separation for misconduct, patterns of 
misconduct.

	i.  On 9 February 1995, the chain of command reviewed the separation 
recommendation and subsequently recommended approval of the separation with a 
characterization of service as under honorable conditions.

	j.  On 21 February 1995, following a legal review for legal sufficiency, the separation 
authority approved the recommendation for separation for patterns of misconduct under 
the provisions of AR 635-200, chapter 14-12b and ordered his service be characterized 
as under honorable conditions.

	k.  On 15 March 1995, the applicant was discharged from active duty under the 
provisions of AR 635-200, Chapter 14-12b with a general under honorable conditions 
characterization of service.  He completed 2 years, 5 months, and 9 days of active duty 
service.  His DD Form 214 shows in:

*	item 24 (Character of Service), Under Honorable Conditions (General)
*	item 26 (Separation Code), JKA (Pattern of Misconduct)
*	item 28 (Narrative Reason for Separation), Misconduct

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, 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.

6.  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 after a pattern of misconduct 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.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for 
the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense, and convictions by civil authorities.  
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 discharge under other 
than honorable conditions 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.

	b.  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.

	c.  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.

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)	 AR20180009479

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