ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20170016955 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge to general, under honorable conditions discharge or higher * Correct faulty information reported to the Department of Energy concerning his discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Energy Military service findings 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 that recently the Department of Energy received information from the U.S. Army stating that he received a bad conduct discharge. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he received an under other than honorable conditions discharge in 1994. He would like a copy of his DD Form 214 and his discharge type changed to general or higher to avoid further confusion. It is very hard to obtain personal files from 24 years ago but he is required to do so by the Department of Energy. The under other than honorable discharge was recommended to him by U.S. Army legal officers. 3. The applicant states he provided the Department of Energy Military service findings. The document was not included with his application. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army was 24 March 1992. a. b. He served overseas in Italy from 11 October 1992 to 6 February 1994. c. The complete facts and circumstances surrounding his discharge are not available for review with this case, however, his service record contains: (1) DD Form 2-1 (Personnel Qualification Record – Part II), reflects a reduction in rank from private first class to private/E-1 on 21 January 1994. (2) DA Form 4126-R, 3836 (Bar to Reenlistment Certificate) reflects: * 11 May 1993, summarized Article 15 for failure to go to appointed place of duty. Received 14 days restriction and 14 days extra duty * 7 May 1993, memorandum of dishonored check of $63.75 * 12 May 1993, dishonored check follow-up, $492.30 unpaid * 17 May 1993, notification of dishonored checks, $1,032.59 * 24 May 1993, notification of check cashing suspended * 2 June 1993, suspension of check cashing, 2nd offense * 28 October 1992, counseling for failure to report * 20 April 1993, counseling for missing formation * 21 April 1993, counseling for failure to report k. He was discharged from active duty on 9 February 1994. He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court martial with a characterization of service of under other than honorable conditions. He completed 1 year, 10 months and 9 days of active service. His DD Form 214 shows he was awarded or authorized: * Army Service Ribbon * Overseas Service Ribbon * Marksman Marksmanship Qualification Badge (M-16) 4. By regulation, the issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. An under other than honorable conditions discharge is appropriate for this type of discharge. 5. By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly execute. The applicant here was discharged in lieu of trial by court-martial. 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. 4. 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 not warranted. Based upon a short term of service completed prior to multiple occasions UCMJ violations, as well as a lack of character evidence from the applicant to show that he has learned and grown from the events which led to the discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/16/2019 X CHAIRPERSON Signed by: 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 Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) provides that an honorable discharge is a separation with honor. 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. Paragraph 3-7b (General Discharge) provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation provided, a member who has committed an offense or offenses, the punishment includes a bad conduct or dishonorable discharge, may submit a request for discharge 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 (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.