ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20190003570


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an under honorable condition (general) 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), dated 14 December 2018

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S.  
Code (USC), Section 1552 (b); however, the Army Board for Correction of Military 
Records (ABCMR) 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 his discharge should be upgraded for medical reasons.

3.  The applicant enlisted in the Regular Army on 3 March 1998.  He completed training 
as a cannon crewmember.

4.  The applicant accepted nonjudicial punishment (NJP), under the provisions of  
Article 15 of the Uniform Code Military Justice (UCMJ), on the following dates for the 
indicated offenses:

   a.  on 27 August 1998, for wrongfully using marijuana between on or about 21 June 
through on or about 20 July 1998, and for stealing a bottle of alcohol, a value of $100.00 
or less, the property of the Army and Air Force Exchange Service;
   
   b.  on 9 November 1998, for wrongfully using marijuana between on or about  
20 September through on or about 19 October 1998;
   
c.  on 10 February 1999, for:

         (1)  wrongfully using marijuana between on or about 29 November through on 
or about 28 December 1998;
         
         (2)  wrongfully using cocaine between on or about 25 December through on 
or about 28 December 1998;
         
         (3)  failing to go at the time prescribed to his appointed place of duty, on or 
about 2 December, 3 December, 6 December, 17 December, 19 December, 
21 December, and 23 December 1998; and 
         
         (4)  failing to go at the time prescribed to his appointed place of duty on or 
about 13 November, 17 November, 19 November, 21 November, 26 November, 
28 November, and 29 November 1998.

5.  The applicant's record is void of documentation that relates to his separation 
processing.  However, his record does contain a DA Form 1574 (Report of Proceedings 
by Investigating Officer/Board of Officers) that shows a Board of Officers convened on 
25 February 1999 to determine whether he should be discharged from service under the 
provisions of Army Regulation (Personnel Separations – Enlisted Personnel),  
Chapter 14, paragraph 14-12c, by reason of misconduct – commission of a serious 
offense.  The board found he committed the serious offenses of marijuana use (on two 
occasions) and larceny, offenses for which a punitive discharge was authorized under 
the UCMJ.  The board recommended discharge from the Army due to the commission 
of a serious offense and that he be issued a DD Form 794A (UOTHC Discharge 
Certificate).

6.  The separation authority approved the recommendation for discharge on 16 March 
1999 and directed the issuance of a UOTHC Discharge Certificate.  

7.  The applicant was discharged on 16 April 1999, under the provisions of Army 
Regulation 635-200, paragraph 14-12c (2), for misconduct – commission of a serious 
offense.  His DD Form 214 confirms his service was characterized as UOTHC.

8.  The Army Discharge Review Board denied the applicant's request for an upgrade of 
his discharge on 7 January 2004.

9.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the 
readiness and competency of the force while providing for the orderly administrative 
separation of Soldiers for a variety of reasons.

10.  The Board should consider the applicant's provided statement in accordance with 
the published equity, injustice, or clemency determination guidance.





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 considered the applicant’s statement, his period of 
service, the frequency and nature of his misconduct, the proceedings of the Board of 
Officers, his discharge and whether to apply clemency.  The Board found no in-service 
mitigation for his misconduct and the applicant provided none; neither did the applicant 
provide any post-service achievements or letters of reference in support of clemency.  
Based on the preponderance of evidence, the Board determined that the character of 
service the applicant received upon separation was not in error or unjust. 

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:

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 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 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Paragraph 3-7a provides that 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 provides that 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 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), 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.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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 a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	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 on the basis of equity, injustice, or clemency 
grounds, Boards 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.



ABCMR Record of Proceedings (cont)	 AR20190003570

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