IN THE CASE OF:  

BOARD DATE:  4 March 2022

DOCKET NUMBER:  AR20210014539


APPLICANT REQUESTS:  

*	upgrade of his under other than honorable conditions discharge 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  

*	DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 
(Application for Correction of Military Record)
*	DD Form 149 (Application for Correction of Military Record)

FACTS:

1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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, indicates on his two applications that he is requesting an upgrade of 
his discharge so he can qualify for Department of Veteran Affairs (VA) benefits. He cites 
personal hardship, divorce, and infidelity as the reason for his discharge.   

3. On 23 January 1985, the applicant, at the age of 17 years old, joined the US Army 
Reserve (USAR) delayed entry program (DEP) for a period of 6 years.  There was no 
evidence his parents signed a parental consent.  On 13 February 1985, the applicant 
was discharged from the USAR DEP and entered active duty for a period of 4 years.  

4. On 14 October 1985, the applicant received a Letter of Commendation for the 
outstanding job he did on his unit's ARTEPS. 

5. On 25 November 1985, a Urinalysis Custody and Report Record shows the 
applicants was found positive for the use of marijuana.  

6. The applicant accepted nonjudicial punishment on:

	a. 27 January 1986, for wrongful use of marijuana. His punishment included 
forfeiture of $160, reduction to private/E-1 (PVT), and extra duty and restriction for 45 
days. He did not appeal his punishment.

	b. 13 April 1987, for violation of a lawful general regulation and assault. The 
applicant demanded trial by court-martial. 

	c. 1 July 1987, for wrongfully using cocaine. His punishment included reduction to 
PVT, forfeiture of $329 for two months, and extra duty and restriction for 45 days 
suspended. There were no indication regarding his appellate rights. 

	d. 9 July 1987, a supplementary action vacating the restriction for 45 days due to 
failing to report to his appointed place of duty. 

	e. 8 August 1987, for failing to go to his appointed place of duty. His punishment 
included forfeiture of $100. He did not appeal his punishment. 

	f. 7 September 1987, for violating a lawful general regulation. His punishment 
included forfeiture of $150, and extra and restriction or 14 days. He did not appeal his 
punishment. 

7. On 29 October 1986, three statements were completed, which stated in effect a SGT 
had instructed two Soldiers regarding how many Soldiers could be transported in a 
vehicle. The applicant got into the vehicle and when he was instructed to get out and 
wait for the next vehicle, he would not leave. The SGT told the applicant to get out of 
the vehicle and the applicant turned away from him and started taking to the other 
occupants ignoring the SGT. The SGT told the applicant on several occasions to get out 
of the vehicle and the applicant began cursing at him. 	 

8. On 20 March 1987, a statement was completed and states a Soldier was leaving the 
latrine when the applicant hit him across the left front part of his head and continued to 
swing. The Soldier stepped back and began fighting back in retaliation. The applicant 
then departed the area. 

9. On 20 March 1987, permanent orders were published awarding the applicant the 
Mechanics Badge for fulfilling the requirements for the award from 16 March 1986 to 17 
March 1987. 

10. On 21 March 1987, an Alcoholic Influence Report was completed, which shows the 
applicant was involved in an alcohol incident which consisted of assault. He was highly 
intoxicated and transported to the Emergency Room for treatment of injuries. He was 
held by medical due to his highly intoxicated state and released in good health by the 
police and the hospital. 

11. A handwritten document entitled MFR (Memorandum for Record) by the First 
Sergeant (1SG) states on:

	a. 23 March 1987, at approximately 1000, he had a telephone conversation with a 
representative from the substance abuse program that the applicant was to be referred 
to the substance abuse program because of alcohol abuse stemming from an incident 
which occurred on 21 March 1987. The representative stated she had received a 
consult from the hospital on the applicant as a result of a breathalyzer performed on 
him. His blood alcohol content was .24. The applicant was therefore required to attend 
substance abuse screening.

	b. 6 April 1987, at approximately 1530, the company commander and 1SG attended 
a substance abuse screening session with the applicant. During the session, the 
applicant stated he did not have a drinking/alcohol problem and did not want treatment. 
The applicant's denial of treatment is reflected on a Disposition Form. 

12. On 29 April 1987, the 1SG completed an MFR, which states, in effect:

	a. At approximately 1145, he received a phone call from a former Soldier of his unit. 
His legal clerk was on the line listening to the majority of the conversations, which the 
Soldier was made aware of and agreed to.

	b. The 1SG asked the Soldier to recall the evening of 20-21 March 1987, when the 
incident occurred between the applicant and a PVT, which involved the consumption of 
alcoholic beverages and the fight between the applicant and the PVT. 

	c. The Soldier stated he remembered the evening. The 1SG asked the Soldier if 
both the applicant and PVT had been consuming alcoholic beverages and the locations 
where they had consumed it, to which the Soldier stated the applicant and PVT were in 
the Soldier's car consuming the alcohol as he drove them around Fort Ord. The Soldier 
stated they were not going to a particular place, just driving around the post.

	d. The 1SG told the Soldier to be sure he had given truthful answers to his questions 
and the Soldier stated he had been truthful. The Soldier offered no information 
concerning the fight/assault, which occurred. The 1SG told the Soldier to make himself 
available if he were needed to answer further questions. 

13. On 12 May 1987, the applicant was tried at a Summary Court-Martial. He pled to 
and was found guilty of violating a lawful general regulation by drinking under the legal 
age of 21. His sentenced to forfeit $100. On 21 May 1987, the sentence was approved 
and ordered executed. on 28 May 1987, the Summary Court-Martial was reviewed by a 
judge advocate general and found to be legal. 

14. On 16 June 1987, a Urinalysis Custody and Report Record shows the applicant was 
positive for the use of a controlled substance. 

15. On 22 June 1987, the applicant underwent a Report of Medical Examination, which 
shows he was qualified for separation from the Army. On the same day, he underwent a 
Report of Mental Status Evaluation, which shows he had the mental capacity to 
understand and participate in the proceedings and was mentally responsible for his 
actions. 

16. On 23 July 1987, a Bar to Reenlistment Certificate was completed and shows, a bar 
to reenlistment was being requested because the applicant ws identified as a drug and 
alcohol abuser who refused treatment. His willful misconduct brought discredit upon his 
unit and the United States Army. It would be in the best interest of the unit and Army 
that the applicant not be considered for further military service upon the completion of 
his enlistment. 

17. The applicant received General Counseling Forms on:

	a. 23 July 1987, for testing positive for the use of cocaine. The applicant signed the 
counseling form. 

	b. 24 July 1987, for absenting himself from his place of duty. The applicant signed 
the form. 

	c. 3 August 1987, informing him his bar to reenlistment had been approved. The 
applicant signed the form. 

18. On 13 August 1987, the applicant's commander advised him that he was 
recommending the applicant for discharge under the provisions of paragraph 14-12b 
(patterns of misconduct), Army Regulation 625-200 (Personnel Separations – Enlisted 
Personnel); the commander's stated reason was during the period covering 4 November 
1985 to 2 June 1987, the applicant had discreditable involvement with military 
authorities by using marijuana, using cocaine, and being disrespectful to an NCO. The 
commander was recommending the applicant receive an under other than honorable 
conditions discharge. On 13 August 1987, the applicant acknowledged receipt of the 
initiation of separation.  

19. On 13 August 1987, after consulting with counsel, the applicant acknowledged 
counsel had advised him of the basis for the separation action, the rights available to 
him, and the effect of waiving those rights.  He requested counsel, elected not to submit 
statements in his own behalf, and requested consideration of his case before an 
administrative separation board.  

20. The applicant's chain of command recommended approval of the discharge. 

21. On 26 August 1987, the applicant ˇwas notified to appear before a board of officers. 
The applicant acknowledged the notification. 

22. On 4 September 1987, a master sergeant (MSG) completed a statement, which 
states at about 1520, he went through the arracks to alert the motor pool personnel to 
move out. He knocked on the applicant's door and informed him he needed to report to 
the motor pool. While the MSG was giving the instruction, the applicant moved to the 
window to get a bottle and put it in front of himself as if to hide it. This looked suspicious 
so the MSG entered the room to find out what was in the bottle, which was vodka. As 
alcoholic beverages were not allowed in the barracks and the applicant was not of age, 
the MSG confiscated the bottle. 

23. On 16 September 1987, the applicant received an administrative separation board. 
The summary of proceedings is available for the Board's review. The board found the 
applicant used marijuana on or about 4 November 1985, was disrespectful to an NCO 
on or about 29 October 1986, wrongfully consumed alcohol on or about 21 March 1987, 
used cocaine on or about 2 June 1987, and further rehabilitation was deemed 
appropriate. The board recommended the applicant be discharged from the military 
service for misconduct with the issuance of a discharge of under other than honorable 
conditions. 

24. On 20 October 1987, a memorandum subject: Notification of Personnel Action 
which informs the applicant the separation authority was going to order the applicant's 
discharge for a pattern of misconduct with an issuance of a discharge Under Other 
Than Honorable Conditions discharge. The separation authority informed the applicant 
of his rights if he wished to appeal. 

25. On 23 October 1987, the appropriate approval authority directed the applicant be 
discharged with an Under Other Than Honorable Conditions discharge and waived the 
rehabilitative transfer requirement. 

26. On 30 October 1987, the applicant was discharged accordingly.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 8 
months, and 18 days of active duty service. He was awarded or authorized the Army 
Service Ribbon, Mechanics Badge, Expert Marksmanship Badge (Grenade), and 
Sharpshooter Marksmanship Badge (M16). 

27. On 7 April 1994, the Army Discharge Review Board (ADRB) sent the applicant a 
letter stating they had reviewed his case and decided to deny his appeal. 

28. The applicant states he is requesting an upgrade of his discharge so he can receive 
VA benefits. He states personal hardship, divorce, and infidelity were the cause of his 
misconduct and subsequent discharge from the Army. 

	a. The applicant's service records are void of, and the applicant did not provide 
documentation regarding his hardships, divorce, and infidelity. 

	b. During the applicant's era of service, commanders could separate Soldiers, under 
paragraph 14-12b, Army Regulation 635-200, when they showed a pattern of 
misconduct involving acts of discreditable involvement with civil or military authorities, 
and/or displayed conduct that was prejudicial to good order and discipline.

	c. The ABCMR does not grant requests for upgrade of discharges solely for the 
purpose of making the applicant eligible for veterans' benefits; however, in reaching its 
determination, the Board can consider the applicant's petition, his service record, and 
his statements in light of the published guidance on equity, injustice, or clemency.  

BOARD DISCUSSION:

The Board carefully considered the applicants 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 insufficient evidence of in-service mitigating factors 
for the misconduct and the applicant provided no evidence of post-service 
achievements or letters of support 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. 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.

REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.  

2.  Army Regulation 635-200, in effect at the time, prescribed policies and procedures 
for enlisted administrative separations.

	a.  An honorable discharge was a separation with honor.  The honorable 
characterization was appropriate when the quality of the Soldier's service generally met 
the standards of acceptable conduct and duty performance.

	b. A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.

	c. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to 
include for a pattern of misconduct and the commission of a serious offense.  Paragraph 
14-12b stated members were subject to separation under this provision when they 
showed a pattern of misconduct involving acts of discreditable involvement with civil or 
military authorities, and/or displayed conduct that was prejudicial to good order and 
discipline.

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.  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.  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)	 AR20210014539

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ARMY BOARD FOR CORRECTION OF MILITARY RECORD

RECORD OF PROCEEDINGS


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