ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
	BOARD DATE:        29 March 2019

	DOCKET NUMBER:  AR20160016265


APPLICANT REQUESTS: upgrade of his general 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 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 completed his first full term of service and he was a model 
Soldier.  This was his first offense.  He believes the record is unjust because his former 
spouse was unfaithful.  The extent of her actions devastated him, causing him to 
exercise poor judgment. 

3.  Review of the applicant's records shows: 

	a.  3 October 1994, he enlisted in the Regular Army (RA).

	b.  21 March 1995 to 20 March 1997, he served in Germany. 

	c.  24 February 1997, Military Police Report reflected various offenses by the 
applicant, including fleeing the scene of a traffic accident, traffic accident due to 
improper backing, failure to pay just debt, and excessive speed for road conditions. 

	d.  27 October 1997, he reenlisted in the RA while in Germany.  

	e.  28 January 1998, he accepted nonjudicial punishment (NJP) under Article 15 of 
the Uniform Code of Military Justice for failing to go at the time prescribed to his 
appointed place of duty.  His punishment consisted in part of a suspended forfeiture of 
pay through 27 July 1998.  

	f.  Also on 28 January 1998, a Military Police (MP) investigation revealed that 
applicant and Ms. XXXXX became involved in a verbal altercation that turned physical 
when Ms. XXXXX pushed the applicant and he struck her with an open fist.  

	g.  26 April 1998 - an MP investigation revealed the applicant struck Ms. XXXXX with 
a closed fist an unknown number of times in the facial and neck area while dancing with 
another individual.  He fled the scene but was later apprehended.  

	h.  6 May 1998, he accepted NJP for unlawfully striking Ms. XXXXX on the face and 
neck area with his fist.  His punishment consisted in part of reduction to E-3. 

	i.  10 June 198, he underwent a mental status evaluation that cleared him 
psychiatrically for any administrative action deemed appropriate by his command. 

	j.  30 June 1998, separation proceedings were initiated for the commission of a 
serious offense (commission of an assault consummated by a battery two times and 
having a failure to repair offense) under the provisions of Army Regulation (AR) 635-200 
(Personnel Separation – Enlisted Personnel), chapter 14.  His immediate commander 
recommended an honorable discharge.

	k.  30 June 1998, he consulted with legal counsel.  He was advised of the basis for 
the contemplated action to separate him for misconduct.  He declined making a 
statement on his own behalf.  Hs acknowledgement statement contains the hand-written 
words "CPT (Captain) XXXXX promised [Applicant] that if he stays out of trouble until 
his departure, an honorable discharge is appropriate."  "

	l.  30 June 1998, his commander initiated separation action against him for 
misconduct in accordance with paragraph 14-12c of AR 635-200.  His immediate 
commander recommended an honorable discharge.  His intermediate commander 
recommended approval with the issuance of an honorable discharge.

	m.  27 July 1998, following a legal review for legal sufficiency, the separation 
authority approved the applicant’s discharge under the provisions of chapter 14 of AR 
635-200 and directed the issuance of a General Discharge Certificate.  

	n.  12 August 1998, he was discharged from active duty under the provision of AR 
635-200, chapter 14-12c (Misconduct).  He completed 3 years, 10 months, and 10 days 
of active service.  His DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows in:

*	item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons 
Awarded or Authorized) the Army Good Conduct Medal, National Defense 
Service Medal, Army Service Ribbon, and Overseas Service Ribbon 
*	item 18 (Remarks), the entry "Continuous Honorable Active Service from 
19941003 to 19971026"
4.  By regulation, commanders are authorized to initiate separation action against 
Soldiers for various types of misconduct including those who commit a serious offense 
(drug use, assault, etc).  The issuance of a discharge under other than honorable 
conditions was normally considered appropriate.

5.  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.  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.

6.  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 reviewing the application and all supporting documents, the Board determined that 
relief was not warranted.  Based upon the short term of service prior to multiple 
occasions of misconduct occurring, to include some misconduct being very serious and 
severe misconduct, the Board found relief was not warranted. 
  

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 Army Board for Correction of Military Records 
(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 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge is given when the quality of the Soldier’s service has 
generally met standards of acceptable conduct and duty performance.

	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.  Paragraph 14-12c, as in effect at the time, states members are subject to 
separation under this provision when they commit a serious offense.  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 Manual of Courts-Martial. 

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.  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.

ABCMR Record of Proceedings (cont)	 AR20160016265

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