IN THE CASE OF:   
 
  BOARD DATE: 3 November 2023 
 
  DOCKET NUMBER: AR20230004164 
 
 
APPLICANT REQUESTS:  an upgrade of his Under Other Than Honorable Conditions discharge to a general under honorable conditions or honorable conditions discharge. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)  
 
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, in effect, he has his life and has been a family man since he was discharged. He has put his kids through college. He is retired now and just wants to upgrade his DD Form 214 (Certificate of Release or Discharge from Active Duty). He served 10 years in the Army and had a good record until the last 2 years in the military. He is sorry for his actions. He reenlisted twice and just wants to die with a good record.         
 
3.  A review of the applicant's official military records show the following: 
 
 a.  He enlisted in the Regular Army for 4 years on 1 May 1979.   
 
 b.  On 3 February 1981, DA Form 1695 (Oath of Extension of Enlistment) shows he extended his enlistment for 9 months to have sufficient time to complete an accompanied tour.      
 
 c.  On 19 October 1983, the applicant reenlisted in the Regular Army for 6 years.   
 
 d.  Orders Number 23-13 published by the U.S. Army Regional Personnel Center, Kitzingen, Germany, promoted the applicant to the rank/grade of staff sergeant (SSG)/E-6, effective 1 February 1986, with a date of rank of 22 January 1986.   
 
 e.  On 16 January 1988, the applicant accepted Non-Judicial Punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ) for writing 3 bad checks in the amounts of $430.00, $15.80, and $390.00. His punishment consisted of forfeiture of $150.00 per month for 2 months; and reduction to pay grade E-5, suspended for 60 days. He did not appeal.   
 
 f.  On 7 November 1988, DA Form 4126-R (Bar to Reenlistment Certificate) shows his battalion commander initiated a Bar to Reenlistment against him for:  
 
• failure to meet financial obligations  

• borrowing money from a subordinate 

• making, drawing, or uttering check, draft, or order without sufficient funds 

• substandard job performance; completed Army Regulation (AR) 15-6 investigation with enclosures dated 13 October 1988    


 
 g.  On 7 December 1988, the brigade commander recommended he be barred from reenlistment. The Commanding General approved and imposed the Bar to Reenlistment against the applicant on 19 December 1988.   
 
 h.  On 5 January 1989, the applicant was notified of the approved Bar to Reenlistment imposed against him and indicated he would appeal it.     
 
 i.  On 6 March 1989, DA Form 2627 (Record of Supplementary Action Under Article 15, UCMJ) shows the applicant's suspension of the punishment of reduction to pay grade E-5, imposed on 16 March 1989 (sic) [16 January 1988] was vacated and executed. The vacation was based on the offense of failing to be at his appointed place of duty on 2 March 1989.  
 
 j.  On 20 June 1989, the Bar to Reenlistment Certificate was reviewed by his immediate commander and removal was not recommended.  
 
 k.  On 29 June 1989, DA Form 5180-R (Urinalysis Custody and Report Record) shows the applicant tested positive for cocaine and the laboratory certifying official certified the test results.   
 
 l.  On 28 August 1989, the applicant accepted NJP under the provisions of the UCMJ for wrongfully using cocaine between on or about 7 June 1989 and on or about 12 June 1989. His punishment consisted of reduction to pay grade E-4; forfeiture of $541.00 per month for 2 months; and 45 days extra duty and restriction. He did not appeal.  
 
 m.  On 29 August 1989 –  
 
  (1) His commander notified him that he was initiating action to separate him under the provisions of AR 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12c, for serious misconduct. The reasons for the commander's proposed action were wrongful use of cocaine, a schedule II-controlled substance, as a Noncommissioned Officer (NCO), violation of Article 112a of the UCMJ, and making and uttering checks without sufficient funds, a violation of Article 123a of the UCMJ. The commander also informed the applicant of his rights.  
 
  (2) The immediate commander formally recommended the applicant for separation action based on wrongful use of cocaine and making and uttering checks without sufficient funds. He also stated an NCO that writes bad checks and wrongfully uses cocaine is not compatible with the mission of the unit and Army.  
 
 n.  On 30 August 1989, the applicant's medical records were reviewed, and it was determined that a medical examination for separation was not required.   
 
 o.  The applicant's chain of command recommended approval of the separation action. 
 
 p.  On 5 September 1989, DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation and was psychiatrically cleared for Chapter 14 (Misconduct) separation action and any administrative action deemed appropriate by his chain of command. 
 
 q.  On 6 September 1989, the applicant consulted with legal counsel and was advised of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. He waived consideration of his case by an Administrative Separation Board (ASB) and waived a personal appearance before an ASB. He elected not to submit a statement in his own behalf and waived representation by legal counsel.   
 
 r.  On 18 September 1989, the separation authority approved and directed the applicant be discharged under the provisions of AR 635-200, paragraph 14-12c. He further directed the applicant's service be characterized as Under Other Than Honorable Conditions and he be immediately reduced to the lowest enlisted grade.  
 
 s.  On 22 September 1989, the applicant accepted NJP under the provisions of the Article 15, UCMJ for leaving from his appointed place of duty (extra duty) on or about  
5 September 1989 and failing to be at his appointed place of duty on 15 September 1989. His punishment consisted of forfeiture of $300.00 per month for 2 months. He did not appeal. 
 
 t.  The applicant was discharged from the Army on 26 September 1989, under the provisions of AR 635-200, paragraph 14-12c, by reason of "misconduct-abuse of illegal drugs." DD Form 214 shows his service was characterized as Under Other Than Honorable Conditions and he completed 10 years, 4 months, and 26 days net active service. It further shows in:  
 
• item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) –   


 
• Army Commendation Medal  

• Army Good Conduct Medal (3rd award) 

• Noncommissioned Officer Professional Development Ribbon numeral 2 

• Overseas Service Ribbon 

• Army Service Ribbon 

• Expert Infantryman Badge 

• Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 
 
• item 18 (Remarks) – "Immediate reenlistments this period: 790501 to 831018; 831019 to 890926"  

• item 26 (Separation Code) – JKK (misconduct, drug abuse) 

• item 27 (Reenlistment Code) – RE-3, RE-3C (ineligible for enlistment unless waiver granted) 


 
 
BOARD DISCUSSION: 
 
 1. After reviewing the application and all supporting documents, the Board determined 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 totality of the misconduct and in the absence of evidence attesting to post-service achievements or letters of reference to weigh in support of a clemency determination, the Board found the character of service the applicant received upon separation was not in error or unjust.  2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant.  
 
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
:xx :xx :xx 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.  
 
  12/12/2023

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):   
 
The applicant's DD Form 214, block 18 (Remarks) should be amended in accordance with AR 635-8, by adding the following entries:   
 
• SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE  

• Continuous Honorable Active Service From 790501 Until 831018   
  
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.  AR 635-200 (Personnel Separations - Enlisted Personnel) in effect at the time sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  
 
 a.  An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service.  
 
 d.  Chapter 14, Section III (Acts or Patterns of Misconduct), paragraph 14-12c provides that Soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manuals for Court-Martial. Abuse of illegal drugs is serious misconduct.  
 
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.  
  
     a.  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.   
     b.  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. 
 
4.  AR 635-8 (Separation Processing and Documents) prescribes the transition processing function of the military personnel system.  
 
 a.  Paragraph 5-1 (When to prepare the DD Form 214) states, the DD Form 214 is a summary of the Soldier's most recent period of continuous active duty. It provides a brief, clearcut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service. 
 
 b.  Block 18 (Remarks) states, in pertinent part, use this block for Headquarters, Department of the Army mandatory requirements when a separate block is not available or for conditional entries as follows: 
 
  (1) Mandatory entry: "SOLDIER (HAS) OR (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE." This information assists the State in determining eligibility for unemployment compensation entitlement. 
 
  (2) For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify inclusive dates for each period of reenlistment.  
 
  (3) For Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable," enter "Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above.    
 
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