ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 October 2019 DOCKET NUMBER: AR20160015659 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States 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 he was given an other than honorable characterization of service under a chapter 10 and was told this would upgrade to general in six months, this did not happen. He was also led to believe his records would be cleared except for the practicing without a license. He was supposed to have the rank of E-4 restored and that never happened. He was held past his separation date and not given the justice he agreed to with the Judge Advocate General and his attorney. The reason for the speedy decision was due to his separation date and being held beyond that date. 3. Review of the applicant’s service records shows: a. Having had prior service in the U.S. Marine Corps and Regular Army (RA), he enlisted in the RA on 22 January 1997. b. He held military occupational specialty 91B (Medical Specialist) and he was assigned to U.S. Army Medical Activity, Fort Benning, GA. c. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, his record contains the following documents: (1) Orders 142-2210, issued by Headquarters, U.S. Army Infantry Center, Fort Benning on 22 May 2001, showing at the rank of private, he was reassigned to the U.S. Army Separation Transfer Point, effective 30 May 2001, for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). (2) A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 30 May 2001 under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions. This form also shows he completed 4 years, 4 months, and 9 days of creditable active service. He was awarded or authorized: * Army Good Conduct Medal * National Defense Service Medal * Southwest Asia Service Medal * Army Service Ribbon d. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation. 4. By regulation (AR 635-200), discharges under the provision of AR 635-200, chapter 10 (Discharge for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-martial. An under other than honorable conditions discharge is appropriate/normal for such a discharge. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon his voluntary request for discharge in lieu of court-martial, the Board determined he admitted guilt to a criminal offense in which his command preferred charges that could have resulted with a BCD. Based on his offense of a criminal nature, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states that 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. c. Paragraph 3-7b states that 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. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR decides cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 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/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. 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. 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) AR20160015659 3 1