IN THE CASE OF: 

		BOARD DATE: 5 December 2022

		DOCKET NUMBER: AR20220003514


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

DD Form 293 (Application for the Review of Discharge) in lieu of the DD Form 149

FACTS:

1.  The applicant did not file within the 3-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 is requesting an upgrade to obtain employment.

3.  On the application it is indicated that the applicant is requests reconsideration of a 
prior application; however, there is no evidence that the case has been previously 
reviewed by the ABCMR.

4.  The applicant enlisted in the Regular Army on 14 May 1996 for 5 years. He 
completed training and was awarded the military occupational specialty 95B (Military 
Police). The highest grade he held was E-2.

5.  Between 22 January and 3 April 1997, the applicant received eight negative 
counseling sessions for, including but not limited to: failure to go to his appointed place 
of duty, failure to prepare for duty, simple assault, communicating a threat, carrying a 
concealed weapon, failure to obey a lawful order, uniform violations, and failure to pay 
just debts.

6.  On 13 March 1997, the applicant's weapons card was suspended.

7.  On 17 April 1997, the applicant was placed on the Special Physical Fitness Program 
following failure of an Army Physical Fitness Test.
8.  A random drug screening taken on 1 April 1997, revealed a positive laboratory report 
for cannabinoids. Associated with the reporting of the test results are statements from 
two Soldiers recounting their knowledge of the applicant's boasting about his drug use. 
His immediate commander recommended he receive nonjudicial punishment (NJP), 
under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 
12 May 1997.

9.  The applicant accepted NJP on 15 May 1997, under the provisions of Article 15 of 
the UCMJ for wrongful use of marijuana, on or about 26 March 1997. His punishment 
included reduction to pay grade E-1.

10.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 20 June 1997, 
shows the applicant had no abnormalities in behavior, level of orientation, mood, 
thinking process, thought content or memory. He was determined to be mentally 
capable to understand and participate in the proceedings deemed appropriate by 
command.

11.  The applicant's immediate commander notified the applicant on 18 September 1997 
that he had initiated actions to separate him from service under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, 
by reason of misconduct – commission of a serious offense.

12.  The applicant consulted with legal counsel on 29 September 1997. He was advised 
of the basis for the contemplated discharge, the possible effects of an under honorable 
conditions discharge, and the procedures and rights that were available to him. He 
elected not to submit a statement in his own behalf.

13.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of Army Regulation 635-200, Chapter 14, for commission 
of a serious offense. 

14.  The appropriate authority approved the discharge recommendation and directed 
the applicant be issued a general discharge under honorable conditions.

15.  The applicant was discharged on 3 November 1997, in the pay grade of E-1. His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was 
discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for 
misconduct and his service characterization was under honorable conditions (general). 
He was credited with 1 year, 3 months, and 22 days of net active service.

16.  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.  

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted. 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 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.

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 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 Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

   c.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes 
procedures for separating personnel for misconduct because of minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, and absence without leave.

	d.  Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who 
committed a serious military or civilian offense, when required by the specific 
circumstances warrant separation and a punitive discharge was, or could be authorized 
for that same or relatively similar offense under the UCMJ.

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.
//NOTHING FOLLOWS//
ABCMR Record of Proceedings (con.t)	AR20220003514


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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