IN THE CASE OF:  

BOARD DATE:  25 October 2021

DOCKET NUMBER:  AR20210011249


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)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 27 October 1999
*	DeVry University Diploma for Bachelor of Science Degree, dated 23 April 2017

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 that over the past 21 years, he has grown as a person since his 
young days in the Army.  He now has four children who look up to him and every day he 
tries to better himself for them.  He has learned from his mistakes since he served and 
has stayed out of trouble and maintained employment.  He also graduated with a 
Bachelor’s Degree in Computer Information Technology.

3.  The applicant enlisted in the Regular Army on 8 September 1997.  Upon completion 
of Initial Entry Training, he was awarded military occupational specialty 13B (Cannon 
Crewmember).  He was assigned to a unit located at Fort Benning, Georgia.

4.  A DA Form 4856 (General Counseling Form) shows the applicant was counseled by 
his first sergeant (1SG) on 26 May 1998, after submitting a urine specimen on 5 May 
1998, during a monthly urinalysis, which tested positive for tetrahydrocannabinol (THC), 
the primary controlled substance contained in marijuana.  The 1SG advised the 
applicant this type of behavior would not be tolerated and he was recommending that 
the applicant receive punishment under the provisions of the Uniform Code of Military 
Justice (UCMJ).  He further advised the applicant that he would be requesting the 
applicant be administratively separated under the provisions of Army Regulation  
635-200 (Personnel Separations – Enlisted Personnel), Chapter 14.  The applicant was 
further advised that should he be involuntarily separated, he could receive an honorable 
discharge, a general discharge under honorable conditions, or an under other than 
honorable conditions (UOTHC) discharge and described the potential impact of each 
type of discharge on future benefits and civilian employment opportunities.

5.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows the 
applicant accepted Field Grade nonjudicial punishment on 13 June 1998, under the 
provisions of Article 15 of the UCMJ, for violating a lawful general regulation and Article 
112a, UCMJ by wrongfully using a controlled substance (marijuana) between on or 
about 5 April 1998 and on or about 5 May 1998.  

6.  A DA Form 4856 shows the applicant was counseled by his 1SG on 10 May 1999 
because a urine specimen he provided on 19 April 1999 during a monthly urinalysis 
tested positive for THC.  The 1SG advised the applicant this type of behavior would not 
be tolerated.  The 1SG informed the applicant he was recommending to the commander 
that the applicant receive Field Grade punishment under the provisions of the UCMJ.  
He further advised the applicant he would be requesting the applicant be 
administratively separated under the provisions of Army Regulation 635-200,  
Chapter 14, due to the fact that this was the applicant’s second positive urinalysis within 
a year’s time period.  The applicant was further advised that should he be involuntarily 
separated, he could receive an honorable discharge, a general discharge under 
honorable conditions, or a UOTHC discharge and described the potential impact of 
each type of discharge on future benefits and civilian employment opportunities.

7.  A DA Form 3822 (Report of Mental Status Evaluation) shows the applicant 
underwent a mental status evaluation on 12 May 1999.  The evaluating psychiatrist 
determined the applicant had the mental capacity to understand and participate in 
administrative proceedings, was mentally responsible, and had no mental health 
problems which required disposition through medical channels.  As a result, the 
applicant was cleared for any administrative action deemed appropriate by command.

8.  A DA Form 2627 shows the applicant accepted Field Grade nonjudicial punishment 
on 18 May 1999, under the provisions of Article 15 of the UCMJ, for violating a lawful 
general regulation and Article 112A, UCMJ by wrongfully using marijuana between on 
or about 19 March 1999 to on or about 19 April 1999.  

9.  The applicant underwent a preseparation medical examination on 19 May 1999.  As 
a result, he was determined to be medically qualified for separation.

10.  The applicant’s immediate commander notified the applicant on 1 July 1999 that he 
was initiating action to involuntarily separate the applicant under the provisions of Army 
Regulation 635-200, Chapter 14, paragraph 14-12c, for commission of a serious 
offense.  The applicant was advised the catalysts for this action were his receipt of two 
Field Grade Article 15s on 13 June 1998 and 18 May 1999 for wrongful use of 
marijuana in violation of Article 112a, UCMJ.  The commander advised the applicant 
that he was recommending that he receive a general discharge; however, neither the 
intermediate commander nor the separation authority were bound by his 
recommendation as to the characterization of his service.  He advised the applicant of 
his rights and referred him to legal counsel.  The applicant acknowledged receipt of this 
notification.

11.  The applicant's immediate commander formally recommended the applicant's 
separation under the provisions of Army Regulation 635-200, paragraph 14-12c  
on 1 July 1999.

12.  The applicant consulted with counsel and was advised of the basis for the 
contemplated action to separate him and of the rights available to him.  He submitted a 
memorandum acknowledging receipt of notification and election of his rights on 6 July 
1999.  He requested his right to be represented by counsel and waived his right to 
provide statements in his own behalf.  He also acknowledged his understanding that he 
may expect to encounter substantial prejudice in civilian life if a general discharge under 
honorable conditions was issued to him.  He further understood that with a discharge 
that is less than honorable, he could make application to the Army Discharge Review 
Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of 
consideration by either board did not imply his discharge would be upgraded.

13.  The applicant’s intermediate commander recommended approval of his separation 
on 21 July 1999, and further recommended that the applicant be issued a DD Form 257 
(General Discharge Certificate).

14.  The separation authority directed that the applicant be discharged from service 
under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for 
commission of a serious offense and further directed that the applicant be separated 
with a general, under honorable conditions discharge.

15.  The applicant was discharged on 27 October 1999.  His DD Form 214 shows he 
was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, 
by reason of misconduct (serious offense), and his service was characterized as under 
honorable conditions (general).  

16.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance



BOARD DISCUSSION:

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 noted that the applicant had earned a degree; 
however, the Board found insufficient evidence of in-service mitigating factors for the 
misconduct to weigh 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.


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.  The version in effect at the time provided that:

	a.  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.  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, in effect at the time, established policy and prescribed procedures for 
separating members for misconduct.  Specific categories included 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 would be taken to separate 
a member for misconduct when it was clearly established that rehabilitation was 
impracticable or was unlikely to succeed.  A discharge UOTHC was normally 
appropriate for a Soldier discharged under this chapter.  However, the separation 
authority could direct a general discharge if such was merited by the Soldier’s overall 
record.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards (DRB) and Service Boards for Correction of 
Military/Naval Records (BCM/NR) on 25 July 2018, 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 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)	AR20210011249

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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