ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20190008352


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
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)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 9 September 1992
*	four letters of support

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 a military review of his conduct was conducted by an acting 
platoon sergeant who had been in charge for only 2 weeks while his regular platoon 
sergeant was on vacation.  The acting platoon sergeant did not know his whole military 
conduct and wrote a bad review.  He served honorably during Operation Just Cause 
and Operations Desert Shield and Desert Storm.

3.  The applicant enlisted in the Regular Army on 18 August 1988.  He deployed to  
Southwest Asia in support of Operations Desert Shield and Desert Storm, from  
18 August 1990 through 7 August 1991.  He reenlisted in the Regular Army on 10 July 
1991.

4.  The applicant provided a urine sample during a routine urinalysis conducted on  
13 March 1992.  The provided urine sample tested positive for cocaine.  The U.S. Army 
Criminal Investigation Command (CID) forwarded its final investigative report to the 
applicant's commander on 18 May 1992.  

5.  The applicant was afforded a Mental Status Evaluation on 8 April 1992, which found 
no abnormalities and cleared him to participate in any administrative proceedings 
deemed appropriate.

6.  The applicant's unit commander initiated separation actions on 15 April 1992, under 
the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), paragraph 14-12c (2), for illegal drug use.

7. The applicant received nonjudicial punishment (NJP) on 29 May 1992, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully 
using cocaine on or between 28 February 1992 and 13 March 1992.  His punishment 
included reduction to private/E-1.

8.  Following his NJP for cocaine use, the applicant received three negative counseling 
statements on:

*	10 July 1992, for being absent for an accountability formation
*	10 July 1992, for violation of barracks visitation policy
*	12 July 1992, for driving on a suspended/revoked license and excessive speed

9.  The applicant's unit commander notified the applicant on 7 July 1992 of his 
recommendation to discharge him due to his illegal drug usage with an under honorable 
conditions (general) service characterization.

10.  The applicant consulted with legal counsel on 8 July 1992, 30 July 1992, and 
20 August 1992.

   a.  He was advised of the basis for the contemplated discharge, the possible effects 
of an under other than honorable conditions discharge, and the procedures and rights 
that were available to him.  

   b.  Subsequent to receiving legal counsel, the applicant acknowledged the proposed 
discharge.  He acknowledged he understood that if he was discharged with a general 
discharge he could be deprived some or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and that he could 
expect to encounter substantial prejudice in civilian life if he received a general 
discharge.  
   
   c.  He initially requested consideration by a board of officers with a personal 
appearance and representation by counsel.  He waived these rights with his submission 
on 20 August 1992.
   
   d.  He was advised he could submit any statements he desired in his own behalf; on 
all three occasions he waived this option.  
11.  The applicant's battalion commander non-concurred with his company 
commander's character of service recommendation and recommended the applicant's 
service be characterized as UOTHC.

12.  The separation authority approved the applicant's discharge on 28 August 1992, 
under the provisions of Army Regulation 635-200, paragraph 14-12c (2).

13.  The applicant was discharged on 9 September 1992, under the provisions of Army 
Regulation 635-200, paragraph 14-12c (2), and his service characterization was 
UOTHC.  His DD Form 214 further shows he was discharged in the rank/grade of 
private/E-1, he was previous awarded the Army Good Conduct Medal, and he reenlisted 
during the total period of service.

14.  The applicant provides letters of support.

	a.  The letters of support from two fellow Soldiers recount their favorable impression 
of the applicant from the time of their joint service and post-service friendship.  They 
describe the applicant as a person of high character, integrity, and an attitude that 
doesn't let anything hinder progression and success to any organization he's affiliated 
with. 

	b.  The letter of support from his minister notes he has known the applicant most of 
his life.  He describes the applicant as a very hard working man who is willing to do 
whatever is asked of him to help others.  He has a passion for his job and is a man of 
character with a number of skills. 

	c.  The letter of support from his employer describes the applicant as an asset to 
their company and is considered one of their best employees. 

15.  The Board may consider the applicant's prior enlistment period, deployments, and 
award of the Army Good Conduct Medal 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 previous 
honorable service, his deployment, the frequency and nature of his misconduct and 
whether to apply clemency.  The Board found no mitigating factors in-service for his 
misconduct, reviewed the letters of support the applicant provided in support of a 
clemency determination.  Based on the preponderance of evidence, the Board 
determined that there was insufficient mitigation to overcome his misconduct and that 
the character of service he received upon discharge was not in error or unjust.  The 
Board concurred with the corrections to his record as stated in the Administrative 
Note(s) below.    

2.  After reviewing the application and all supporting documents, the Board found 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:

With the exception of the corrections stated in the Administrative Note(s) below, 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):

A review of the applicant's record shows his DD Form 214, for the period ending 
9 September 1992, 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 (Remarks): 

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 880818-910709
*	
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 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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

   c.  Paragraph 14-12c(2) states abuse of illegal drugs as serious misconduct.  It 
continues; however, by recognizing that relevant facts may mitigate the nature of the 
offense.  

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)	 AR20190008352
	
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