ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		BOARD DATE:  26 April 2019

	DOCKET NUMBER:  AR20190000494


APPLICANT REQUESTS:  The applicant requests an upgrade of his characterization of 
service from under honorable conditions, general to fully honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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, in effect, he was a dedicated, focused, career minded Soldier.  
However, he made a serious mistake, but it was not a judgement of his character.  

3.  On 1 September 1992, the applicant enlisted in the Regular Army for 4 years.  He 
held military occupational specialty (MOS) 31R (Multichannel Transmission Systems 
Operator).

4.  According to General Counseling Forms, between May 1995 and March 1996, the 
applicant was counseled numerous times for various reasons to include:  not being 
recommended for promotion (twice), because he was not performing at the next level; 
dishonored checks on multiple occasions, due to maintaining sufficient funds in his 
checking account; failure to meet his financial obligations; failure to report to formation 
on time on more than one occasion; suspended Army Air Force Exchange Services 
check cashing and credit program privileges; delinquent support of dependents; 
disobeying a lawful order; failure to comply with corrective training; substandard 
performance; failure to repair; substandard performance; failure to be in the proper 
uniform; and for having no demonstrated potential for future service.


5.  On 12 March 1996, he accepted nonjudicial punishment under the provisions of 
Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana 
between 27 November and 27 December 1995.  His punishment consisted of reduction 
to pay grade E-1, a forfeiture of pay, and extra duty.

6.  On 28 March 1996, a Bar to Reenlistment Certificate was approved against the 
applicant.  The commander cited the basis for the bar was his nonjudicial punishment 
for wrongful use of marijuana 

7.  A Report of Medical Examination, dated 5 April 1996, shows the applicant was found 
qualified for separation.  A Report of Mental Status Evaluation, dated 18 April 1996, 
shows the applicant underwent a mental status evaluation and he was cleared for 
separation action.

8.  On 17 April 1996, he accepted nonjudicial punishment under the provisions of Article 
15, UCMJ, for wrongfully using marijuana between 18 February and 18 March 1996.  
His punishment consisted of reduction to pay grade E-1, a forfeiture of pay, and extra 
duty.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

9.  The applicant’s commander notified him he was initiating action to separate him 
under the provisions of chapter 14, paragraph 14-12c, Army Regulation (AR) 635-200, 
for having tested positive for marijuana on two separate occasions, during a unit 
analysis, for which he received two field grade Article 15’s and for dishonored checks 
totaling over $1,000.  

10.  On 29 April 1996, the applicant was advised by consulting counsel of the basis for 
the contemplated separation action and acknowledged receipt of the commander's 
notification of the intent to separate him.  He was advised of the basis for the 
contemplated separation action for misconduct, the type of discharge he could receive 
and the rights that were available to him.  He elected to submit a statement on his own 
behalf. His statement is not available for review with this case. 

11.  The applicant's immediate commander initiated separation action against him under 
the provisions of chapter 14, paragraph 14-12c (2) (b), Army Regulation 635-200, for 
misconduct, with a general discharge.  

12.  On 9 May 1996, the applicant’s intermediate commander concurred with the 
applicant’s immediate commander and recommended separation under the provisions 
of chapter 14, paragraph 14-12c (2) (b), AR 635-200, with a general discharge.  

13.  The separation authority approved the applicant’s discharge, under the provisions 
of chapter 14, paragraph 14-12c (2) (b), AR 635-200, by reason of misconduct – 
misconduct-commission of a serious offense, and directed the issuance of a General 
Discharge Certificate. 

14.  The DD Form 214 he was issued confirms he was discharged under the provisions 
of Army Regulation 635-200, chapter 14, paragraph 14-12c, by reason of misconduct 
with a general discharge.  He completed 3 years, 9 months, and 6 days of total active 
service.  
15.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  
Chapter 14, paragraph 14c prescribes separation for commission of a serious offense.  
Paragraph 14-12c states that abuse of illegal drugs is serious misconduct.  Paragraph 
14-c(2)(b) states that second-time drug offenders, grades E1 - E-9, must be processed 
for separation.  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.  

16.  His record shows he was separated due to testing positive for marijuana use twice 
and he was issued a general discharge.  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 guidance. 

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  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.  Based upon the 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.


ADMINISTRATIVE NOTE(S):

Not Applicable

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 sets forth the basic authority for the separation of enlisted personnel.  
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, convictions by civil authorities, desertion 
or absence without leave.  

     a.  Paragraph 14c prescribes separation for commission of a serious offense.  
Paragraph 14-12c states that abuse of illegal drugs is serious misconduct.  

     b.  Paragraph 14-c(2)(b) states that second-time drug offenders, grades E1 - E-9, 
must be processed for separation.  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.  

     c.  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. 

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.  

     a.  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.  

     b.  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)	 AR20190000494

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