ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20190005931


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:  DD 
Form 293 (Application for the Review of Discharge from the Armed Forces of the United 
States) in lieu of 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 made a mistake outside of his service which should not have 
affected his service to the degree of receiving a general under honorable conditions 
discharge.  He believes the punishment was too harsh and his discharge should be 
upgraded.

3.  On 18 September 1987, at the age of 18 years old, the applicant enlisted in the 
Regular Army for a term of 4 years.  After completing one station unit training, the 
applicant was assigned to an overseas location in Germany.

4.  The applicant was counseled on five occasions between 2 February 1988 and 
9 November 1990:  initial counseling and counselings for forgery, missing duty, and 
missing formation on two occasions. 

5.  The record shows the applicant accepted nonjudicial punishment (NJP) on:

*	18 June 1990 for violating a lawful general regulation by wrongfully possessing 
nunchakus, wrongfully possessing marijuana, and making a false official 
statement with the intent to deceive
*	23 November 1990 for falsely making a certain check to another Soldier with the 
intent to defraud and for stealing $100.00 from the same Soldier
6.  On 29 November 1990, 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.  

7.  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.  

8.  The applicant’s intermediate commander recommended approval of the separation 
and on 3 December 1990, the appropriate commander approved the recommendation 
for separation and directed that the applicant be issued a General Discharge Certificate.

9.  On 7 December 1990, the applicant was discharged accordingly.  His service was 
characterized as under honorable conditions (general).  He completed 3 years, 
2 months, and 20 days of net active service this period with 2 years, 10 months, and 
10 days of Foreign Service.  His DD Form 214 (Certificate of Release or Discharge from 
Active Duty), shows he was awarded or authorized:

*	Army Service Ribbon
*	M-16 Rifle Sharpshooter Marksmanship Qualification Badge
*	Hand Grenade Expert Marksmanship Qualification Badge

10.  The applicant states he made a mistake outside of his service which should not 
have affected his service to the degree of receiving a general discharge.  His record 
shows he enlisted at the age of 18 years old and he accepted two NJPs, one which 
included wrongfully possessing marijuana.  He served 38 months and 20 days of his 
48 months contractual obligation.

11.  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.

12.  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 in-service mitigating factors for the misconduct and the applicant 
provided no post-service achievements or letters of reference in support for clemency 
consideration.  The Board determined, by 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.  
   
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 (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  

   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, BCM/NRs 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)	 AR20190005931

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