ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 July 2019 

	DOCKET NUMBER:  AR20160019169


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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, in effect:

   a. It is his belief that the discharge was inequitable, as he has never had any disciplinary issues prior to the incident that led to his discharge.  Yet, he was punished for operating within the scope of his duties.  He accepted the charges levied against him because he did destroy property while conducting raids on homes and he did see his Soldier strike a detained Iraqi National.  He thought his actions of reprimanding the Soldier, who struck a detained Iraqi National, was enough.  This is in no way indicative of the length, though short lived, of his military career. 
   
   b. It is almost impossible to secure any meaningful employment with such a glaring blemish on it.  He is constantly judged by the fact he was discharged from the military under other than honorable conditions.  The service he rendered has become invalidated by a simple act of poor judgement on his part.  He has had to live with this and being denied employment constantly for essentially being fired.  It was inequitable because it was just a lack of judgment thinking he could deal with an issue of detainee abuse on his level.  He was wrong and has duly suffered.  He is requesting an upgrade of his discharge that would no longer cause an immediate character assassination based on his DD-214.

3.  The applicant's service record shows:

   a. He took the Oath of Office on 14 May 2005 as a Reserve Commissioned Officer and entered into active duty on 17 May 2005.
   
   b. The complete facts and circumstances surrounding his separation are not available for review.  His DD Form 214 confirms he was discharged on 15 February 2008, under the provisions of AR 600-8-24, paragraph 3-13, in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions.  He completed 2 years, 8 months, and 29 days of active service.  

4.  AR 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.

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 reviewing the application and all supporting documents, the Board found the relief was 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.  One Board member voted to deny relief due to the severity of his misconduct involving enemy prisoners under his responsibility, and although he accepts responsibility for his actions, he was not remorseful while attempting to justify his omission to report prisoner abuse to superiors.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  The majority of the Board voted to grant an under honorable conditions characterization of service due to the perceived stress he endured on the battlefield after being in Iraq for over a year.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	:	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	X	:	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 15 February 2008 showing his characterization of service as under honorable conditions (General).

	 
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.  AR 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  

   a. Paragraph 1–18, provides that an officer who has been convicted and sentenced to dismissal or dishonorable discharge will not be discharged prior to completion of appellate review without prior approval of CG, HRC.  A Regular Army (RA) officer may be processed for excess leave under AR 600–8–10.  A reserve component (RC) officer may be released from active duty (AD) per paragraphs 2–37 and 2–38 of this regulation.
   
   b. Chapter 3 states any officer of the Active Army or USAR may tender a resignation under provisions of this chapter.  The Secretary of the Army or his designee may accept resignations and orders will be issued by direction of the CG, HRC.  An officer whose resignation has been accepted will be separated on the date specified in Department of the Army’s orders or as otherwise directed by the Department of the Army.  The date of separation, as specified or directed, will not be changed without prior approval of HQDA nor can valid separation orders be revoked subsequent to the specified or directed date of separation.  
   
   c. Paragraph 3-13a, provides that an officer may submit a resignation for the good of the Service (RFGOS) in lieu of general court-martial (GCM) under the following circumstances (cannot submit unqualified resignation): 

      (1) Court-martial charges have been preferred against the officer with a view toward trial by GCM.

(2) The officer is under a suspended sentence of dismissal.

   d. Paragraph 3-13b, states the tender of a RFGOS does not preclude or suspend procedures. A convening authority will not, however, take action on the findings and sentence in such cases until the Secretary of the Army or designee has acted on the RFGOS.

   e. Paragraph 3-13a, provides that an officer under court-martial charges or under investigation with a view toward court-martial will be retained on AD until final disposition of the charges or investigation or until the officer’s RFGOS is approved.

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 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. 

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20160019169


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