IN THE CASE OF: 

		BOARD DATE:  5 December 2022

		DOCKET NUMBER: AR20220005377


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

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD 214 (Certificate of Release or Discharge from Active Duty) 

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, 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 he takes full responsibility for failing to complete his 4-year 
enlistment. He failed two urine tests for the use of marijuana. He does not condone the 
use of marijuana, even though it’s looked at differently than it was in 1999. He was 
young when he served, and he still had a lot to learn. He served and trained in field 
artillery, which is one of the most dangerous military occupational specialties (MOS), he 
could have been killed. Life is a learning experience, and he made many mistakes. He 
requests that the Board factor in the dangers he faced and give him the opportunity to 
obtain his full benefits by upgrading his discharge.

3.  A review of the applicant’s service record shows, on 28 April 1997, he enlisted in the 
Regular Army for 4 years. He completed the training requirements, and he was awarded 
MOS 13B (Cannon Crewmember). On 5 September 1997, he was assigned to Germany 
with duties in his MOS.

4.  He accepted non-judicial punishment, under the provisions of Article 15, Uniform 
Code of Military Justice (UCMJ), on the following occasions:

*	On 11 August 1998, for wrongfully using marijuana a controlled substance 
between on or about 24 May and 24 June 1998
*	On 16 December 1998, for wrongfully using marijuana a controlled substance 
between on or about 3 July and 3 August 1998

5.  His immediate commander notified the applicant of his intent to initiate actions to 
separate him under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – pattern of 
misconduct. The reasons cited for the proposed action are: Wrongful use of a controlled 
substance, disrespectful conduct, failure to obey orders, assault, and several
incidents of failure to be at his appointed place of duty.

6.  He consulted with counsel 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 elected not to submit a statement in his own behalf.

7.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of AR 635-200, chapter 14, by reason of misconduct with a 
General Discharge Certificate.

8.  Both of his intermediate commanders recommended a waiver of rehabilitation 
requirements and separation with a General Discharge Certificate.

9.  The separation authority approved the recommendation and directed the issuance of 
General Discharge Certificate.

10.  The applicant was discharged on 10 August 1999. His DD Form 214 confirms he 
was discharged under the provisions of AR 635-200, paragraph 14-12b, by reason of 
misconduct. His service was characterized as under honorable conditions (general).

11.  Chapter 14 established policy and prescribed procedures for separating members 
for misconduct. Specific categories included minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense, conviction by civil authorities, desertion, 
or absences without leave. 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 under other than honorable conditions was normally considered 
appropriate. However, the separation authority could direct a general discharge if 
merited by the Soldier's overall record.




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, U.S. Code, 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.  AR 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. Chapter 14 established policy and prescribed procedures for separating members 
for misconduct. Specific categories included minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense, conviction by civil authorities, desertion, 
or absences without leave. 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 under other than honorable conditions was normally considered 
appropriate. However, the separation authority could direct a general discharge if 
merited by the Soldier's overall record.

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.  

	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 based on 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. 

   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)	AR20220005377


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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