ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20180012976


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than 
honorable conditions (UOTHC) discharge to a general under honorable conditions 
discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States) in lieu of DD Form 149 (Application for 
Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for period 
ending 29 July 1994
*	Nineteen Letter/Character References

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:

   a.  He feels he is a victim of double jeopardy because he was punished once for 
something that was out of his control.  He was reduced from the rank/grade of sergeant 
(SGT)/E-5 to private one (PV1)/E-1 for something they should only have reduced him to 
specialist (SPC)/E-4).  After his two weeks of confinement (restriction) to the barracks, 
he went in front of the commander again and the commander told him that he did not 
want him in his Army.
   
   b.  If the Board looks at the form, AOCP-POG-HH (Memorandum from Commander, 
Headquarters and Headquarters Company, 4th Psychological Operations Group 
(Airborne), Fort Bragg, North Carolina, dated 22 April 1994), all of this makes no sense.  
He just started reviewing all of this when he inquired if there was any way to overturn 
the decision that was made.  That is where he found discrepancies with the character of 
discharge he was supposed to receive and the one he actually received.  All of this 
needs to be reviewed and corrected because he was not a P.O.S (piece of s_ 
(expletive)) Soldier who joined the Army just to say that he was in the Army.  He 
volunteered and would have made a career out of it, if all of this never happened.  
Protocol and regulations regarding this incident were not followed and that is why he 
thinks this could and should have been handled differently.  A search warrant was never 
obtained for the search of the vehicle that at one point was his but he gave the vehicle 
to his brother in law, who lived in and the applicant left for his duty station in 
North Carolina.  
   
   c.  Although no search warrants were issued and absolutely no narcotics were found 
in his possession, the criminal investigations division (CID) failed to help him out in all of 
this and to look out for one of their own like they were supposed to.  He thinks Captain 
(CPT) S. had already spoken with CID as he waited for his two weeks of restriction to 
end.  The applicant thinks there was something suspicious, if the Board sees all this 
from his point of view and wonder why they are trying to see to it that he gets out of the 
Army and why is it that CPT S. thinks that it is his Army when CPT S. is a Soldier just as 
he is.  The only difference is that he had more rank.  
   
   d.  Nothing was ever done to the applicant’s brother-in-law who was the one behind 
all of this and should have been the one to face the punishments.  The applicant was 
told by the inspector general (IG), that he would be allowed to come back in the service 
in two years, but that was not what CPT S. wanted.  According to CPT S., he did not 
want him in his Army.  He knows for a fact that CPT S. was racist because he did not 
like Mexicans.  He feels that there were definite red flags because why there were no 
charges for the weapons, like they claimed were in the van, but were not?  To set the 
record straight, the weapons were in the applicant’s car and were registered to him.  
The only mistake in all of this was his failure to make sure his brother in law registered 
the vehicle in his own name, so that it was no longer in the applicant’s name.  
   
   e.  He never had any Article 15s or courts-martial for any of this.  If the allegations 
were true, why did he not receive the 20-year punishment that these charges carried?  
The character statements which were submitted, were dismissed due to the fact that 
none of these individuals ever went on leave with him.  He feels that they should not 
have been dismissed because they knew him as a Soldier and they were his superiors.  
CID never went on leave with him either, then everything they submitted as evidence 
should also be thrown out.  Where all of this happened was at his sisters in Austin but 
that was not his destination.  It was a stop as he headed to his parents' house in the Rio 
Grande Valley.
   
   f.  CPT E.I., who was supposed to be his judge advocate general (JAG) counselor, 
never objected to anything that was presented and used against him, but he never did 
anything and told him not to worry about it.  What makes this even odder is that he 
ended up being assigned to the unit that the applicant was assigned to.  Chief Warrant 
Officer D., who was supposed to be the lead investigator in this case, was reassigned to 
Korea, before his trial (board) even started.

3.  On 17 March 1989, at the age of 27 years old, the applicant enlisted in the Regular 
Army for a term of 4 years.  After completing initial entry training he was assigned to 
Fort Bragg, NC.  On 27 September 1992, he was honorably discharged for immediate 
reenlistment.  On 28 September 1992, he enlisted for a term of 4 years.

4.  His record contains a criminal investigations division (CID) report which revealed the 
applicant was under investigation for conspiracy, wrongful distribution of marijuana, and 
wrongful possession of marijuana.

5.  On 10 January 1994, he received an administrative reprimand (general officer of 
memorandum of reprimand (GOMOR)). 

a.	The administrative reprimand stated:

      (1)  On 12 June 1993, a van driven by a civilian, but registered to the applicant, 
was searched on Fort Bragg pursuant to a warrant.  The applicant was not at the scene, 
but the applicant’s wife and his brother-in-law were in a car following the van.  Twenty 
pounds of marijuana were seized from the van.  The applicant was apprehended for 
wrongful distribution of marijuana.

      (2)  In a statement to CID, the applicant claimed that he sold the van to relatives 
in Texas, but the van was registered in the applicant’s name.  He also admitted that he 
loaned the van to some relatives while he still owned it, in exchange for $1000.00 in 
case for each use.  The applicant admitted that he flew to TX on several occasions and 
purchased vehicles for them and the relatives paid for the vehicles in cash.  The 
applicant admitted that he suspected that his relatives were involved in drug trafficking.  
The applicant’s wife and brother-in-law both said the applicant knew about the drug 
trafficking.

   b.	The applicant submitted a rebuttal to the administrative reprimand, which also 
included a statement from the applicant regarding the incident.

   c.	The administrative reprimand was filed in the applicant’s official military 
personnel file (OMPF).

6.  On 22 April 1994, the applicant’s immediate commander notified the applicant that 
he was initiating separation actions against him under the provisions of Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, Section III, 
paragraph 14-12c, commission of a serious offense for drug trafficking.  He 
recommended a general under honorable conditions discharge.

7.  The applicant acknowledged he had been notified of the pending separation action 
against him and he had been advised by his consulting counsel of the basis for the 
contemplated action, understood his rights, submitted 18 statements in his own behalf, 
and requested consideration of his case before an administrative separation board.  

8.  The intermediate and senior commanders recommended approval of the separation 
with an under other than honorable conditions discharge.

9.  On 15 May 1994, the case was referred to an administrative separation board.  On 
17 May 1994, the applicant was notified to appear before the board scheduled to 
convene on 1 June 1994.  On 18 May 1994, the applicant acknowledge receipt of the 
notification to appear.  On the same date, the separation packet was received by SPC 
L.C., which contained the chain of command recommendations.  On 23 May 1994, the 
applicant’s request for delay was granted for the board to convene on 16 June 1994.  
On 16 June 1994, the administrative separation board convened and found the 
applicant committed a serious offense and recommended that he be discharged from 
the service with an under other than honorable conditions discharge.  

10.  On 16 June 1994, the applicant submitted his objections to the administrative 
separation board proceedings to the convening authority.  He objected to:  the 
immediate commander recommended him for a general discharge and that he was not 
notified that he was recommended for an under other than honorable discharge prior to 
the board convening; therefore, he was not given ample opportunity to confer with his 
counsel; he does not feel he received a fair and impartial hearing because the president 
of the board denied a challenge for cause of one of the board members; and notifying 
the board members that the battalion and group commanders recommended an under 
other than honorable conditions discharge resulted in unlawful command influence.  

11.  On 26 June 1994, the appropriate commander approved the administrative 
separation board findings and recommendations and directed that the applicant be 
issued an under other than honorable conditions discharge and be reduced to the grade 
of E-1.

12.  On 29 July 1994, the applicant was discharged accordingly.  His service was 
characterized as UOTHC.  His personnel qualification record-part II shows he served in 
an imminent danger pay area in Panama from 22 December 1989 to 31 January 1990.  
He completed 5 years, 4 months, and 13 days of net active service this period.  His DD 
Form 214, shows he was awarded or authorized:

*	Army Service Ribbon
*	National Defense Service Medal
*	Army Good Conduct Medal
*	Army Achievement Medal
*	Parachutist Badge
*	Armed Forces Expeditionary Medal
*	Joint Meritorious Unit Award
*	Noncommissioned Officer Professional Development Ribbon

13.  On 10 September 1998, the Army Discharge Review Board denied his petition to 
upgrade his discharge, determining that the applicant was properly and equitably 
discharged.

14.  The applicant provided 19 statements:  Two statements from G. O. and L. R, 
regarding the drug trafficking incident and 17 character references attesting to the 
applicant’s good character as a Soldier, neighbor, friend, and a family man.

15.  The applicant states he feels that he is a victim of double jeopardy because he was 
punished once for something that was out of his control.  He was reduced from SGT/E-5 
to PV1/E-1 for something they should only have reduced him to SPC/E-4.  His record 
shows he received a general officer memorandum of reprimand – administrative 
reprimand for drug trafficking.  He completed 22 months of his 48 months contractual 
obligation.

16.  AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, in effect at 
the time, was a separation for commission of a serious offense-.  The issuance of a 
discharge under other than honorable conditions (UOTHC) was normally considered 
appropriate for discharges under Chapter 14.  In a case in which an UOTHC is 
authorized by regulation, a member may be awarded an honorable or general 
discharge, if during the current enlistment period of obligated service he has been 
awarded a personal decoration or if warranted by the particular circumstances of a 
specific case.

17.  The ABCMR is not an investigative body and decides cases based on the evidence 
that is presented in the military records provided and the independent evidence 
submitted with the application.  The applicant has the burden of proving an error or 
injustice by a preponderance of the evidence.  

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


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board discussed the applicant’s service record, the nature of his 
misconduct, his statement regarding the offense, that statements of support he provided 
and whether to apply clemency.  The Board determined that the evidence and 
supporting documents were insufficient to overcome the serious nature of the 
misconduct and that the character of service he received was not in error or unjust.  The 
Board concurred with the administrative correction shown below.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.
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:

With the exception of the administrative correction in the Note(s) below, 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 the requested 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):

A review of the applicant’s record shows his DD Form 214 (Certificate of Release or 
Discharge from Active Duty), for period ending 29 July 1994, is missing important 
entries that affect his eligibility for post-service benefits.  As a result, amend the DD 
Form 214 by adding to item 18 (Remarks):

*	"SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE"
*	"CONTINUOUS HONORABLE ACTIVE SERVICE FROM 890227 UNTIL 
890316"



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, set forth the basic authority for the administrative separation of 
enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types 
of misconduct.  The issuance of a discharge under other than honorable conditions 
(UOTHC) was normally considered appropriate for separations under the provisions of 
chapter 14.  In a case in which an UOTHC is authorized by regulation, a member may 
be awarded an honorable or general discharge, if during the current enlistment period 
of obligated service he has been awarded a personal decoration or if warranted by the 
particular circumstances of a specific case.

   a.  Paragraph 14-12c provided for the separation of a Soldier due to commission of a 
serious military or civil offense, if the specific circumstances of the offense warrant 
separation and a punitive discharge would be authorized for the same or a closely 
related- offense under the Manual for Court-Martial.  An absentee returned to military 
control from a status of AWOL or desertion may be separated for commission of a 
serious offense.  The issuance of a discharge under other than honorable conditions 
(UOTHC) was normally considered appropriate for separations under the provisions of 
chapter 14. 
   
   b.  Paragraph 14-12c(2) provided, in pertinent part, that first–time drug offenders. 
Soldiers in the grade of sergeant and above, and all soldiers with 3 years or more of 
total military service, Active and Reserve, will be processed for separation upon 
discovery of a drug offense.
   
   c.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.  
   
   d.  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 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 the applicant.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which is 
that what the Army did was correct.  The ABCMR is not an investigative body and 
decides cases based on the evidence that is presented in the military records provided 
and the independent evidence submitted with the application.  The applicant has the 
burden of proving an error or injustice by a preponderance of the evidence.  

ABCMR Record of Proceedings (cont)	 AR20180012976


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