IN THE CASE OF: BOARD DATE: 21 October 2023 DOCKET NUMBER: AR20220006807 APPLICANT REQUESTS: Upgrade of his under honorable conditions (general) discharge to an honorable discharge. He also requests personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 6 April 2022 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), unsigned/dated * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Numerous in-service personnel documents * Court documents from dated 16 April 1997 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 he does not believe that all the things that he accomplished during his time in service were considered in his discharge status. He asks that this information be reviewed and taken into consideration in the decision to change his discharge to honorable. He is happy to speak with the Board in this process to share additional information if needed. 3. The applicant enlisted in the Regular Army on 12 November 1993, for 3 years. Upon completion of training, he was awarded military occupational specialty 92Y (Unit Supply Specialist). He reenlisted on 28 March 1996, for 3 years in the grade of E-4. 4. A military police report, dated 9 August 1996 shows the applicant was charged and arrested for having an unlawful weapon and evading arrest stemming from an incident that occurred in on 2 August 1996. 5. On 15 October 1996, the applicant accepted non-judicial punishment under Article 15 of the Uniform Code of Military Justice, for wrongfully using marijuana, on or about 12 August 1996. His punishment included reduction to the grade of E-1, forfeiture of $437 pay per month for two months, 45 days restriction and 45 days extra duty. 6. The applicant's immediate commander notified him on 18 November 1996, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (Commission of a Serious Offense), citing the applicant's use of marijuana. 7. The applicant consulted with counsel and was advised of the basis for the contemplated separation action, the possible effects of the discharge, and the rights available to him. He indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. He declined to submit a statement in his own behalf. 8. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14-12c. By legal review on 25 November 1996, the separation action was found to be legally sufficient for further processing. 9. Consistent with the chain of command's recommendation, the separation authority approved the recommended discharge on 3 December 1996 and the issuance of a under honorable conditions (general) discharge. 10. The applicant was discharged on 23 December 1996. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, for misconduct. His service was characterized as under honorable conditions (general) (Separation Code JKK and Reentry 4). He completed 3 years, 1 month, and 12 days of net active service this period. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and the Marksmanship Qualification Badge with Rifle Bar. His continuous honorable active service is noted for members who honorably served their first term of enlistment. 11. The applicant provides: a. Court documents from dated 16 April 1997 that shows the applicant was adjudged to be guilty of evading arrest and unlawfully carrying a weapon. b. Numerous in-service personnel documents from his official military personnel file for consideration of his request. These documents are provided in their entirety for the Board’s review within the supporting documents. 12. 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: 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 applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged from active duty due to Misconduct – Commission of a Serious Offense and received a general discharge. The applicant provided no evidence of post-service achievements or letters of reference in support of 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 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. a. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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 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. 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) AR20220006807 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1