ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20190004162


APPLICANT REQUESTS: His under honorable condition (general) discharge be 
upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)

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 he would like the Board to please review his discharge and 
upgrade it to an honorable discharge. 

3.  The applicant enlisted in the Regular Army on 15 May 1992.

4.  The applicant received nonjudicial Punishment (NJP) on 2 March 1994, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for:

*	wrongfully using cocaine between on or about 11 November 1993 and on or 
about 22 November 1993
*	assaulting a fellow Soldier with a blunt object, on or about 17 January 1994
*	overindulging in intoxicating liquor or drugs and not being able to perform his 
duties, on or about 28 January 1994 

5.  The applicant's unit commander notified him on 30 March 1994 that he was initiating 
actions to separate him from service under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12c(2), for 
misconduct.  The applicant acknowledged receipt of the proposed separation 
memorandum on the same date.
6.  The applicant was afforded the opportunity to consult with counsel; however, he 
waived that right.  He declined the opportunity to submit statements in his own behalf.  
He acknowledged his understanding that he could expect to encounter substantial 
prejudice in civilian life if he was issued a less than fully honorable discharge.  He 
acknowledged he understood that if he received a discharge/character of service that 
was less than honorable, he could make application to the Army Discharge Review 
Board (ADRB) or the ABCMR for upgrading.  However, he realized that an act of 
consideration by either board did not imply that his discharge would be upgraded.  He 
further acknowledged he would be ineligible to apply for enlistment in the U.S. Army for 
a period of two years after discharge. 

7.  The applicant's commander recommended that further counseling and rehabilitation 
efforts be waived.  Additionally, he formally recommended the applicant's separation 
from service under the provisions of Army Regulation 635-200, Chapter 14, paragraph 
14-12c(2), for misconduct with a under honorable conditions (general) discharge.

8.  The separation authority, on 30 March 1994, waived further rehabilitative efforts and 
approved the applicant's discharge under the provisions of Army Regulation 635-200, 
Chapter 14, paragraph 14-12c(2), for misconduct.  He directed the issuance of a 
General Discharge Certificate.

9.  The applicant was discharged on 25 April 1994.  The DD Form 214 he was issued 
confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 
14, paragraph 14-12c(2), by reason of misconduct.  His service was characterized as 
under honorable conditions (general).  

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 discussed the nature of the misconduct, the character of 
service he received and whether to apply clemency.  The Board found no mitigating 
factors in the record and the applicant provided none.  The Board determined that the 
character of service he received at separation was not in error or unjust. 

2.  After reviewing the application and all supporting documents, the Board determined 
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 states 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.  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)	 AR20190004162

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