BOARD DATE:  3 December 2019

DOCKET NUMBER:  AR20190004786


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States), dated 25 November 2016

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code, 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 believes he was discriminated against while at Fort Hood.  
Despite completing the Primary Noncommissioned Officers Course (PNCOC), others 
who did not attend the training were promoted ahead of him.  The stress of other 
Soldiers being promoted before him led to the events that resulted in his separation.  He 
no longer does drugs.  He would like to receive medical care from the Department of 
Veterans Affairs, which has prompted this request for a discharge upgrade.  

3.  The applicant enlisted in the Regular Army on 27 November 1978.  After completing 
his initial entry training, he was assigned to Fort Polk, LA.  He graduated from PNCOC 
on 22 May 1981; his DA Form 1059 (Service School Academic Evaluation Report) 
shows he achieved course standards.

4.  The applicant reenlisted in the Regular Army on 17 June 1981.  He was awarded the 
Army Good Conduct Medal (1st Award) on 1 December 1981.  He was reassigned to 
Germany on or about 26 January 1982.  

5.  The applicant accepted non-judicial punishment (NJP) on 3 May 1983, under the 
provisions of Article 15 of the UCMJ, for failing to go at the prescribed time to his 
appointed place of duty, on or about 23 March 1983.

6.  The applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control 
Program (ADAPCP) on 11 October 1983, following a suspected driving while intoxicated 
arrest on or about 16 September 1983.  He was released from ADAPCP due to 
satisfactory program completion on or around 12 January 1984.

7.  The applicant was reassigned to Fort Hood on or around 5 August 1984.  He was 
awarded the Army Good Conduct Medal (2nd Award) on 26 October 1984.

8.  As part of a random urinalysis on 17 January 1985, the applicant provided a urine 
sample that tested positive for an unspecified drug.

9.  The applicant accepted NJP on 1 April 1985, under the provisions of Article 15 of the 
UCMJ, for the indicated offenses:

*	for wrongfully using marijuana on a date between 7 and 17 January 1985
*	for failing to go at the prescribed time to his appointed place of duty, on or about 
1 February 1985
*	for absenting himself without authority, from on or about 9 March 1985 through 
on or about 12 March 1985

10.  As part of a random urinalysis on 6 March 1985, the applicant provided a urine 
sample that tested positive for an unspecified drug. 

11.  The applicant received a Bar to Reenlistment on 6 May 1985.  

12.  The applicant accepted NJP on 7 May 1985, under the provisions of Article 15 of 
the UCMJ, for the wrongfully using marijuana on a date between 25 February and  
6 March 1985. 

13. The applicant was notified on 7 May 1985 of his immediate commander's intent to 
initiate separation actions against him under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), paragraph 14-12d, by reason of testing 
positive during a unit urinalysis test.  The applicant acknowledged receipt of the 
proposed separation action on 7 May 1985. 

14.  The applicant consulted with counsel on 7 May 1985 and was advised of the basis 
for the contemplated action to separate him under the provisions of Army Regulation 
635-200, paragraph 14-12d, and its effect; of the rights available to him; and of the 
effect of any action taken by him to waive his rights.  He further acknowledged his 
understanding that he could expect to encounter substantial prejudice in civilian life if 
other than honorable be condition discharge, was issued to him.  He elected 
consideration of his case by a board of officers.  

15.  The applicant's immediate commander formally recommended, on or about 7 May 
1985, the applicant's separation from service under the provisions of Army Regulation 
635-200, paragraph 14-12d, by reason of his positive urinalysis test result.  

16.  The applicant was notified on 30 May 1985 that in accordance with the provisions 
of Army Regulation 15-6, paragraph 5-5, and Army Regulation 635-200, a board of 
officers hearing would be convened to determine if he should be discharged due to 
misconduct prior to the expiration of his term of service. 

17.  A board of officers convened on or about 20 June 1985.  The board determined the 
applicant had committed serious misconduct, and recommended that he be eliminated 
from the service with an Other Than Honorable Discharge [UOTHC], as noted in the 
Summary of Proceedings, dated 20 June 1985.

18.  Consistent with the chain of command and board recommendations, the separation 
authority approved the applicant's discharge on 15 August 1985, by reason of 
misconduct, and directed that he be issued a DD Form 794A (UOTHC Discharge 
Certificate). 

19.  The applicant was discharged on 28 August 1985.  His DD Form 214 shows he was 
discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with 
his service characterized as UOTHC.  His DD Form 214 further shows in: 

	a.  Item 12c (Record of Service – Net Active Service This Period), he was credited 
with completing 6 years, 5 months, and 13 days of net active service.  
    	
	b.  Item 18 (Remarks), the entry "IMMEDIATE REENLISTMENTS THIS PERIOD:  
781127-810616; 810617-850828."  Item 18 does not contain an entry referencing either 
the completion of his first full term of service or his prior period of continuous honorable 
service.

20.  The Board should consider the applicant's 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, regulatory requirements, and published DoD guidance for 
consideration of discharge upgrade requests.  The Board considered the applicant’s 
statement, his record of service, the frequency and nature of his misconduct which 
included AWOL and several drug abuse incidents, and the character and reason for his 
separation.  The Board noted the facts presented above.  

2.  The Board noted that the applicant had benefit of a review by a Board of Officers.  
The Board of Officers considered all the facts and found that the applicant’s discharge 
was justified based on his misconduct.

3.  While the applicant contends that he was a victim of racial prejudice, he has not 
provided any evidence to support his contention.  In accordance with regulation, the 
applicant has the burden of proving an error or injustice by a preponderance of the 
evidence.  The Board also noted that he did not raise the contention of racial prejudice 
to the Board of Officers.

4.  The Board found insufficient evidence of in-service mitigation to overcome the 
misconduct and there was no post-service evidence to justify a clemency determination. 
The Board found the character of service equitable under the circumstances.  Based on 
a preponderance of evidence, the Board determined that there was no error or injustice 
in the applicant’s discharge or character of service, or basis for clemency.

5.  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:

1.  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.

2.  The Board does recommend that the administrative corrections in the Administrative 
Note(s) below be executed.


 

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, for the period ending  
28 August 1985, is missing important entries that affect his eligibility for post-service 
benefits.  As a result, amend the DD Form 214 by adding the following entries to  
item 18: 
*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 781127 THRU 810616
REFERENCES:

1.  Title 10, U.S. Code, Section 1552(b), provides that applications for correction of 
military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be 
in the interest of justice to do so.  

2.  Army Regulation 635-200, in effect at the time, set 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190004786

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190004786


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ABCMR Record of Proceedings (cont)	AR20190004786


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