ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20190005430


APPLICANT REQUESTS:  The applicant requests an upgrade of his general under 
honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: The DD 
Form 149 (Application for Correction of Military Record).

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 he was given the option to transfer to another unit or be 
discharged with a general status (discharge).  He was told that after six months he 
could apply to have his status upgraded to an honorable discharge.  

3.  On 22 February 1984, at the age of 17 years old, the applicant enlisted in the 
Regular Army for a term of 4 years.  He successfully completed advanced individual 
training and was assigned to 31st Maintenance Company, Fort Irwin, CA as a Track 
Vehicle Repairer on 4 March 1985.

4.  The record shows, the applicant accepted nonjudicial punishment (NJP) on two 
occasions:  5 December 1985 and on 11 September 1986 for wrongfully using cocaine

5.  On 18 September 1986, the applicant’s immediate commander notified the applicant 
that he was initiating separation actions against him under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, 
paragraph 14-12c, for misconduct – abuse of illegal drugs.  

6.  The applicant acknowledged he had been notified of the pending separation action 
against him and he had been advised by his consulting counsel of the basis for the 
contemplated action, understood his rights, and elected not to submit statements in his 
own behalf.  

7.  On 18 September 1986, the appropriate commander approved the recommendation 
for separation and directed that the applicant be issued a General Discharge Certificate.

8.  On 25 September 1986, the applicant was discharged accordingly.  His service was 
characterized as general under honorable conditions.  He completed 2 years and 
13 days of net active service this period.  His DD Form 214 (Certificate of Release or 
Discharge from Active Duty), shows he was awarded or authorized the Army Service 
Ribbon and the M-16 Rifle Marksman Marksmanship Qualification Badge.

9.  The applicant states he was given the option to transfer to another unit or be 
discharged with a general discharge.  He was told that after six months he could apply 
to have his status upgraded to an honorable status discharge.  His record shows he 
enlisted at the age of 17 years old and within 9 months of reporting to his first unit of 
assignment he accepted his first NJP for wrongfully using cocaine and then a second 
time within 9 months for the same offense.  The available evidence does not indicate 
the applicant was referred to drug rehabilitation.  He served 24 months and 13 days of 
his 48 months contractual obligation.

10.  AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, in effect at 
the time, was a separation for commission of a serious offense.  The issuance of a 
discharge under other than honorable conditions (UOTHC) was normally considered 
appropriate for discharges under Chapter 14.  In a case in which an UOTHC is 
authorized by regulation, a member may be awarded an honorable or general 
discharge, if during the current enlistment period of obligated service he has been 
awarded a personal decoration or if warranted by the particular circumstances of a 
specific case.

11.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published DOD guidance on equity, injustice, or clemency.

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 and whether to apply clemency.  
The Board found no mitigating factors for the misconduct and the applicant provided no 
post-service accomplishments or letters of reference in support of a clemency 
determination.  The Board determined, based on preponderance of evidence, that the 
character of service the applicant received at discharge 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 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.  Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set forth the basic authority for the administrative separation of 
enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types 
of misconduct.  The issuance of a discharge under other than honorable conditions 
(UOTHC) was normally considered appropriate for separations under the provisions of 
chapter 14.  In a case in which an UOTHC is authorized by regulation, a member may 
be awarded an honorable or general discharge, if during the current enlistment period 
of obligated service he has been awarded a personal decoration or if warranted by the 
particular circumstances of a specific case.

   a.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.  
   
   b.  Paragraph 14-12c provided for the separation of a Soldier due to commission of a 
serious military or civil offense, if the specific circumstances of the offense warrant 
separation and a punitive discharge would be authorized for the same or a closely 
related- offense under the Manual for Court-Martial.  An absentee returned to military 
control from a status of AWOL or desertion may be separated for commission of a 
serious offense.  
   
   c.  Paragraph 14-12d provided, in pertinent part, that second–time drug offenders, 
Soldiers in the grade of E-1 to E-9, will be processed for separation after a second 
offense.  Members whom charges will not be referred to a court-martial authorized to 
impose a punitive discharge or against whom separation action, will not be initiated 
under the provisions of chapter 9, alcohol or other drug abuse rehabilitation failure, or 
section II, conviction by civil court, of this chapter will be processed for separation under 
a, b, or c, as applicable.  

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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an 
injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the 
guidance as well as eighteen individual factors related to the applicant.

ABCMR Record of Proceedings (cont)	 AR20190005430

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