IN THE CASE OF:  
 
  BOARD DATE: 9 January 2024 
 
  DOCKET NUMBER: AR20230005968 
 
 
APPLICANT REQUESTS: an upgrade of his characterization of service from under honorable conditions (general) to honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record), 20 March 2023 

• DD Form 214 (Certificate of Release of Discharge from Active Duty), 28 November 1989 


 
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, in effect, when he was young, he received a DWI (driving while intoxicated) which resulted in a misconduct discharge. He admits he made an error in his judgment. 
 
3.  The applicant enlisted in the Regular Army on 30 August 1984 for a 3-year period. He conducted an immediate reenlistment on 13 August 1987 for an additional 3-year period. The highest rank he attained was specialist/E-4. 
 
4.  A petty offense docket sheet and judgement order form shows the applicant was arrested for DWI on 3 June 1989. He subsequently plead guilty and was found guilty of the offense on 10 July 1989. 
 
5.  An arrest report shows on 15 October 1989, he was arrested for his second offense of driving under the influence. 
 
6.  On 31 October 1989, the applicant's immediate commander notified the applicant of the intent to recommend him for separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12c 
(Commission of a Serious Offense). The commander noted his reasons for the proposed action were the applicant’s conviction from the U.S. Magistrate Court for DWI on 10 July 1989 and his apprehension for DWI on 15 October 1989. 
 
7.  On 3 November 1989, the applicant acknowledged receipt of the proposed separation notification memorandum and consulted with counsel. He was advised of the basis for the contemplated separation action against him, the rights available to him, and the effect of any action taken by him to waive those rights. He was advised he could submit statements in his own behalf. He elected not to submit a statement. 
 
8.  On 14 November 1989, the applicant's immediate and intermediate commanders formally recommended his separation from service under the provisions of AR 635-200, Chapter 14 and the issuance of an under honorable conditions (general) characterization of service. 
 
9.  The separation authority approved the recommended separation on 20 November 1989 and further directed the issuance of a general discharge certificate. 
 
10.  The applicant was discharged on 28 November 1989, under the provisions of AR 635-200, paragraph14-12b, by reason of misconduct – commission of a serious offense. His DD Form 214 confirms his service was characterized as under honorable conditions (general) with separation code "JKQ" and reentry code "RE-3". He was credited with 5 years, 2 months, and 29 days of net active service. His DD Form 214 does not list his continuous honorable service or whether he completed his first term of service. He was awarded or authorized the following: 
 
• Army Service Ribbon 

• Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 

• Expert Marksmanship Qualification Badge with Grenade Bar 

• Overseas Service Ribbon 

• Army Achievement Medal (2nd award) 

• Multinational Forces Observer Medal 


 
11.  Regulatory guidance states when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, for misconduct, an under other than honorable conditions characterization of service is normally appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  
 
12.  The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. 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 and record of service, the frequency and nature of the applicant's misconduct and the reason for separation.  
 
 a.  The evidence shows the applicant was discharge due to misconduct – commission of a serious offense. Specifically, the applicant’s conviction from the U.S. Magistrate Court for DWI on 10 July 1989 and his apprehension for DWI on 15 October 1989. He received a general discharge. The Board found no error or injustice in his separation processing. The applicant provided no evidence of post-service achievements or letters of reference of a persuasive nature 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. 
 
 b.  The Board did note however that the applicant’s service from first date of enlistment to the date before his last reenlistment was honorable. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, in addition to listing immediate reenlistment(s), an entry is required for continuous honorable service from first day of service for which DD Form 214 was not issued until date before commencement of current enlistment.  
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
:xx :xx :xx GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
: : : DENY APPLICATION 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 to show in the Remarks Block: 
• SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE 

• CONTINUOUS HONORABLE SERVICE FROM 19840830 UNTIL 19870812 


 
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 
 
  1/9/2024

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.  Army Regulation 635-5 (Personnel Separations), 15 August 1979, did not provide for an additional entry for continuous honorable active service, when a Soldier who previously reenlisted without being issued a DD Form 214 was discharged with any characterization of service except honorable. However, an interim change, published on 2 October 1989 does provide for such an entry. 
 
3.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  
 
 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 used for a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
 
 c.  Paragraph 5-3 (Secretarial plenary authority) states, separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. 
 
 d.  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. 
 
  (1)  Paragraph 14-3 states a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 
 
  (2)  Section III (Acts or Patterns of Misconduct), paragraph 14-12c, states Soldiers are subject to discharge for Commission of a serious offense. 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 under the MCM. Specific instances of serious offenses include abuse of illegal drugs or alcohol  
 
  (3)  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may  
direct a general discharge if such is merited by the Soldier’s overall record. 
conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice (UCMJ), Army regulations, the civil law, and time-honored customs and traditions of the Army. 
 
4.  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/NR) 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 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority.  
 
 a.  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//