IN THE CASE OF:  
 
  BOARD DATE: 3 November 2023 
 
  DOCKET NUMBER: AR20230006855 
 
 
APPLICANT REQUESTS: an upgrade of his under honorable conditions (general) discharge to honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for the Correction of Military Record) 

• His resume  

• Bachelor of Science Diploma 


 
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 is requesting an upgrade of his general, under honorable conditions discharge to honorable. He went back to school and earned a bachelor’s degree following his discharge. He was a kid when he was separated and admits he made a mistake.  He has matured, has a family, and learned that he could request an upgrade. The upgrade could potentially allow him to receive Department of Veterans Affairs (VA) benefits for him and his family. 
 
3.  The applicant provides: 
 
a.  A resume which lists his professional experience and positions held from September 2010 through March 2023. 
 
 b.  His Bachelor of Science degree obtained on 19 December 2009 from the East Texas Baptist University. 
 
4.  The applicant enlisted in the Regular Army on 2 August 2001 for 4 years. He completed training with award of the military occupational specialty 92A (Automated Logistical Specialist). The highest rank he attained was E-2.  
 
5.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the 24 October 2003 for use of illegal drugs, marijuana. His punishment was reduction to E-1, forfeiture of $522 per month for two months, 45 days of extra duty, and 45 days restriction.  
 
6.  The applicant's immediate commander notified the applicant, on 3 February 2002 of his intent to initiate actions to separate him under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14- 12c, for misconduct – commission of a serious offense. His commander noted the specific reasons as the positive drug test and NJP. 
 
7.  After consulting with legal counsel, he acknowledged:  
 
• the rights available to him and the effect of waiving said rights 

• he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him 

• he may be ineligible for many or all benefits as a Veteran under both Federal and State laws 

• he may apply to the Army Discharge Review Board or the ABCMR for upgrading 

• he is ineligible to apply for enlistment for a period of 2 years after discharge 

• he elected to submit a waiver of his administrative rights provisionally upon receiving not less than a general discharge  
 
8.  On 3 February 2003, the applicant's immediate commander formally initiated separation from service under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14- 12c for misconduct – commission of a serious offense.  
 
9.  On 10 February 2003, the separation authority approved the discharge recommendation and directed the applicant be issued a General Discharge Certificate, under Army Regulation 635-200, Chapter 14, paragraph 14- 12c for misconduct – commission of a serious offense. 
 
10.  The applicant was discharged on 28 February 2003, in the pay grade of E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 6 months, and 29 days of net active service with no lost time. He was assigned separation code JKK and the narrative reason for separation listed as, “Misconduct” with reentry code 3.  
 
11.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.  
 
12.  In determining whether to grant relief the Boards for Correction of Military/Navy Records (BCM/NR) can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief was not warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for liberal consideration and clemency in determining  discharge upgrade requests. The Board considered the misconduct and whether there was sufficient evidence of mitigating circumstances to weigh in favor of clemency determination. The Board considered the applicant’s resume and noted the applicant’s  post service accomplishments. After due consideration of the request, the Board determined the evidence presented sufficient to warrant a recommendation for relief.   
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
:xx :xx :xx GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
: : : DENY APPLICATION 
 
 
BOARD DETERMINATION/RECOMMENDATION: 
 
The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 28 February 2003 showing his character of service as Honorable. 
 
  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. 
 
 
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 635-200 (Personnel Separations – Enlisted Personnel) 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. 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 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.  
 
4.  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.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.   
 
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