ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  . 

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20190005332


APPLICANT REQUESTS:  His under honorable conditions (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), dated 11 March 2019

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 status improved from under honorable conditions 
to honorable.

3.  The applicant enlisted in the Regular Army on 25 August 1987.  

4.  The applicant accepted nonjudicial punishment (NJP) on 22 February 1989, under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for 
wrongfully using marijuana between on or about 4 December 1988 and on or about 
3 January 1989.

5.  A DA Form 4187 (Personnel Action) shows the applicant was arrested on 16 April 
1989 for possession of cocaine and aggravated assault on a Junction City Law 
Enforcement Officer.  He returned to duty on 30 May 1989 and was scheduled to 
appear in court on 6 June 1989.

6.  The applicant was counseled on at least four separate occasions between 11 July 
1989 and 31 May 1990.  His DA Forms 4856 (General Counseling Forms) show he 
counseled for offenses including but not limited to:

*	non-selection for promotion due to a failed a urinalysis test
*	failure to repair
*	off duty performance
*	overall performance

7.  The applicant's commander notified the applicant on 10 July 1990 of his intent to 
initiate actions to separate him under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of 
misconduct.  The applicant's commander cited his pattern of misconduct prejudicial to 
good or and discipline as the basis for his recommendation.  The applicant 
acknowledged receipt of the notification.  He declined the opportunity to consult with 
counsel and he elected not to submit a statement in his own behalf.

8.  The applicant's commander formally recommended his separation from service on 
10 July 1990, under the provisions of Army Regulation 635-200, paragraph 14-12b, for 
a pattern of misconduct.  The separation authority approved the recommendation for 
discharge on 30 July 1990 and directed that the applicant's service be characterized as 
under honorable conditions.

9.  The applicant was discharged on 2 August 1990, under the provisions of Army 
Regulation 635-200, paragraph 14-12b, for misconduct – a pattern of misconduct.  His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he 
completed 2 years, 9 months, and 18 days of net active service this period and his 
service was characterized as under honorable conditions (general).

10.  Army Regulation 635-200 sets forth the 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.

11.  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 record of 
service, the frequency and nature of his misconduct, the reason for his separation and 
whether to apply clemency.  The Board found no evidence of in-service mitigating 
factors for the misconduct and the applicant provided no evidence of post-service 
achievements or letters of reference in support of a clemency determination.  Based on 
a 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 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 
(including drug abuse), 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.

	c.  Paragraph 14-3 states 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)	 AR20190005332

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