IN THE CASE OF: 

		BOARD DATE:  9 September 2022

		DOCKET NUMBER: AR20220002406


APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) 
discharge be upgraded to an under honorable conditions (general) discharge. 
Additionally, he desires a personal appearance before the Board via video/telephone.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

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, 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 he would like to be considered for a general discharge. He has 
worked 12-years for the Army Air Force Exchange Store, and he has worked 20-years 
as a bus driver.

3.  The applicant enlisted in the Regular Army on 27 February 1986, for a 4-year service 
obligation. Upon completion of training, and the award of military occupational specialty 
12B (Combat Engineer), he was assigned to a unit in Germany. The highest grade he 
attained was Specialist/E-4.

4.  A DD Form 5180-R (Urinalysis Custody and Report Record), dated 30 November 
1988, shows the applicant tested positive for cocaine during a unit urinalysis testing 
conducted on 16 November 1988. 

5.  The applicant accepted non-judicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ) on 20 December 1988, for wrongful use of 
cocaine, between on or about 16 October 1988 to on or about 15 November 1988. His 
punishment included forfeiture of $438.00 a month for two months, extra duty, restriction 
for 45 days, and reduction to Private/E-1.

6.  A DD Form 5180-R (Urinalysis Custody and Report Record), dated 17 May 1989, 
shows the applicant tested positive for cocaine during a unit urinalysis testing conducted 
on 4 May 1989. 

7.  The applicant accepted non-judicial punishment, under the provisions of Article 15 of 
the UCMJ on 25 May 1989, for wrongful use of some amount of cocaine, between on or 
about 30 April 1989 and 4 May 1989. His punishment included forfeiture of $349.00 a 
month for two months, extra duty, and restriction for 45 days.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 31 May 1989, shows 
the applicant had no significant mental illness, was mentally responsible, and had the 
mental capacity to understand and participate in board proceedings.

9.  The applicant wrote a letter dated 19 July 1989 as a rebuttal to the Article 15 he 
received on 25 May 1989, in which he states: 

	a.  He has been on active duty approximately 4-years and he has always been a 
good Soldier, until he mingled with the wrong crowd, and used cocaine. He helped the 
Criminal Investigation Department (CID) to bust a couple of drug users and dealers as a 
plea bargain agreement between him and CID. During his term of service, he received 
one certificate of achievement and one certificate of honor from the 32nd Guards 
Motorized Rifle Regiment.

	b.  With all due respect, he would very much appreciate receiving a under 
honorable (general) certificate. It would enable him to procure a civilian job. He did not 
want to have the stigma of an other than honorable discharge, on his military record.

10.  The applicant’s commander received a letter of indebtedness dated 14 June 1989, 
which indicated the applicant was past due on a loan.

11.  The applicant's commander notified the applicant on 19 June 1989 of his intent to 
initiate actions to separate him from service, under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for 
misconduct – commission of a serious offense. His commander cited, as the specific 
reason for the proposed separation, the applicant’s two positive results on urinalysis for 
cocaine.

12.  The applicant consulted with counsel on 19 June 1989 and was advised of the 
basis for the contemplated actions to separate him and of the rights available to him.  
He acknowledged his understanding and requested consideration of his case by 
personal appearance before, a board of officers.  He elected to submit a personal 
statement in his own behalf, however it is absent from his record.

13.  Military Police Reports dated 14 July 1989 and 4 August 1989, show the applicant 
was arrested by civil warrants for unauthorized use of a movable (color television) and 
issuing two worthless checks. On both instances, he was transported to the local jail 
and incarcerated pending bond.

14.  On 29 August 1989, the applicant appeared before a Separation Board. Based on 
the Board's findings the applicant was recommended for separation from service with an 
UOTHC discharge.

15.  The applicant's counsel on 14 September 1989 requested a new separation board 
to determine if the applicant should be separated prior to the expiration of his term of 
service for alleged acts of misconduct. The staff judge advocate denied the request and 
recommended his other than honorable discharge.

16.  Consistent with the chain of command recommendations, the separation authority 
approved the applicant's discharge recommendation on 31 October 1989, under the 
provision of Army Regulation 635-200, Chapter 14, and directed he receive an UOTHC 
discharge.

17.  Accordingly, the applicant was discharged on 6 November 1989. His DD Form 214 
(Certificate of Release or Discharge from Active Duty) confirms he was discharged 
under the provisions of Army Regulation 635-200, Chapter 14, for misconduct – abuse 
of illegal drugs. He was credited with 3 years, 5 months, and 26 days of net active 
service. His service was characterized as UOTHC.

18.  The applicant's record is void of evidence he was referred to the Alcohol and Drug 
Abuse Prevention and Control Program (ADAPCP).

19.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade 
of his service characterization.  The ADRB considered his request on 20 March 1992, 
determined that his discharge was proper and equitable, and denied his request for 
relief.

20.  Clemency guidance to the Boards for Correction of Military/Navy Records 
(BCM/NR) does not mandate relief, but rather provides standards and principles to 
guide Boards in application of their equitable relief authority to ensure each case will be 
assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby 
a service member under the same circumstances today would reasonably be expected 
to receive a more favorable outcome.
	a.  Army Regulation 635-200, Chapter 14, provides for the separation of Soldiers 
when they have a pattern of misconduct involving acts of discreditable involvement with 
civil or military authorities and conduct which is prejudicial to good order and discipline. 
The issuance of a discharge under other than honorable conditions is normally 
considered appropriate for separations under this chapter.

	b.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.

BOARD DISCUSSION:

1.  The applicant's request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision.  As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.

2.  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 although the applicant mentioned his work 
experience, he did not provide 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.

3.  Prior to closing the case, the Board did note the analyst of record administrative 
notes below, and recommended the correction is completed to depict the military 
service of the applicant more accurately.




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:

Except for the correction addressed in Administrative Note(s) below, the Board found 
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 records shows his 
DD Form 214 omitted an award. His DD Form 214 for the period ending 6 November 
1989 will be administratively corrected without Board action to show in Block 13 
(Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or 
Authorized) the Overseas Service Ribbon.




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 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The applicant's request for a personal appearance hearing was carefully considered.  
However, by regulation, an applicant is not entitled to a hearing before the Board.  
Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  
In this case, the evidence of record and independent evidence provided by the applicant 
and his counsel is sufficient to render a fair and equitable decision at this time.  As a 
result, a personal appearance hearing is not necessary to serve the interest of equity 
and justice in this case.

3.  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 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 UOTHC discharge 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.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20220002406


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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