ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20170015531


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge From Active Duty)
*	Self-Authored Statement, dated 27 July 2017
*	DA Form 2-1 (Personnel Qualification Record, Part II)

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 provides a self-authored statement which states he was falsely 
accused of having sexual contact with a trainee.  He attempted to calm a disruptive 
trainee, who was injured.  He informed the First Sergeant of the situation and was 
instructed not to report the incident in the QC log and that they would take care of the 
problem.  The “injured” trainee retaliated and instructed his girlfriend, also in the unit, to 
make false sexual claims against him (see attached).

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 8 September 1982.

	b.  Court-martial charges were preferred on 24 October 1991. His DD Form 458 
(Charge Sheet) indicates he was charged with:

*	one specification of wrongfully engaging in sexual intercourse with a 
Soldier-in-training
*	one specification of committing sodomy with a soldier-in-training
*	one specification of fraternization and sexual intercourse with a woman not 
his wife

	c.  He consulted with legal counsel and on 25 October 1991, submitted a statement 
on his own behalf (see attached) and subsequently, requested discharge under 
provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10 (Discharge For the Good of the Service), in effect at the time.  
He acknowledged:

*	he was guilty of the charge against him or of a lesser included offense which 
also authorizes the imposition of a bad conduct or dishonorable discharge
*	if his request was accepted, he could be discharged under other than 
honorable conditions and furnished an Undesirable Discharge Certificate
*	he may be ineligible for many or all benefits administered by the Veterans 
Administration and he may be deprived of rights and benefits as a Veteran 
under both Federal and State laws
*	he can expect to encounter substantial prejudice in civilian life because of an 
undesirable discharge certificate

	d.  Consistent with the chain of command’s recommendation, on 5 November 1991 
the separation authority approved the applicant’s request for separation under the 
provisions of chapter 10, AR 635-200, Chapter 10 (Discharge For the Good of the 
Service), in effect at the time.  He was reduced to the grade of PVT/E1 and furnished an 
Under Other Than Honorable Conditions Discharge Certificate.

	e.  The applicant was discharged on 22 November 1991.  His DD Form 214 shows 
he was discharged with an under other than honorable conditions characterization of 
service.  He completed 9 years, 2 months and 15 days of active service.  It also shows 
he was awarded or authorized the:

*	Meritorious Service Medal
*	Army Commendation Medal
*	Army Achievement Medal with 2nd Award
*	National Defense Service Medal
*	Good Conduct Medal with 2nd Award
*	Army Service Ribbon
*	Overseas Service Ribbon
*	NCO Professional Development Ribbon with Numeral 2 
*	Expert Marksmanship Qualification Badge with Rifle Bar
*	Driver and Mechanic Badge

4.  By regulation (AR 635-200), a member who has committed an offense or offenses, 
which includes a bad conduct or dishonorable discharge, may submit a request for 
discharge for the good of the Service.  A discharge under other than honorable 
conditions normally is appropriate for a soldier discharged for the good of the service.

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, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined that relief was warranted.  One potential outcome discussed was to 
deny the discharge upgrade based upon the applicant breaking a position of trust and 
the nature of the misconduct involved.  However, based upon the total service record of 
the applicant, including that prior to the misconduct, the Board concluded that upgrading 
the characterization of service to Under Honorable Conditions (General) was 
appropriate.

Additionally, the Board noted that the applicant had prior periods of honorable service 
which are not currently reflected on his DD Form 214.  The Board recommended that 
change also be completed to more accurately depict the military service of the 
applicant.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:X	:X	GRANT FULL RELIEF

:X	:	:	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 relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 showing his characterization of service as Under Honorable Conditions 
(General).
2.  Additionally, the Board also recommended that all Department of the Army records 
of the individual concerned be corrected by adding the following additional statement to 
block 18 (Remarks) of his DD Form 214:  “Continuous honorable active service from      
8 September 1982 until 28 January 1990.”
	  
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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) is a separation with honor.  The 
honorable characterization is appropriate when the quality of a 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.  Paragraph 3-7b (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.  Chapter 10 of this regulation provides procedures for separating soldiers who 
have committed an offense or offenses, for which under includes a bad conduct or 
dishonorable discharge, may submit a request for discharge for the good of the Service.  
A discharge under other than honorable conditions normally is appropriate for a soldier 
discharged for the good of the service.

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 regarding equity, injustice or clemency determinations.  
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to an applicant.  
These factors include the severity of the misconduct and the length of time since the 
misconduct.


ABCMR Record of Proceedings (cont)	 AR20170015531

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