ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 April 2019 DOCKET NUMBER: AR20170018731 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) be upgraded to either an under honorable conditions (general) discharge or an honorable 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) * a third-party reference letter, dated 28 March 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. 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 provides no personal statement or reason for his request. 3. The applicant enlisted in the Regular Army on 3 October 2001. 4. The applicant received nonjudicial punishment on 28 February 2007, under Article 15 of the Uniform Code of Military Justice, for assaulting his wife. The assault resulted in reported contusions, a possible concussion, and fractured ribs. 5. The applicant was counseling on 25 July 2007, for assaulting his wife, and on 24 November 2007, for being absent without leave (AWOL) from on or about 30 October through on or about 23 November 2007. 6. The applicant's unit commander notified the applicant on 5 June 2008 of his intent to initiate separation actions against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct. The applicant acknowledged receipt of the proposed separation memorandum. 7. The applicant consulted with counsel on 5 June 2008 and was advised of the basis for the contemplated action to separate him for misconduct under Army Regulation 635-200, paragraph 14-12c and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights. He acknowledged his understanding that his discharge could deprive him of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He was advised he could submit any statements he desired in his own behalf; however, there is no evidence of his election in this regard. 8. A formal recommendation for separation was submitted and approved through his chain of command and found legally sufficient by the command legal officer. 9. The separation authority approved the applicant's discharge on 24 September 2008, under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the applicant be discharged UOTHC. 10. The applicant was discharged on 5 November 2008. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, and his service characterization was UOTHC. His DD Form 214 shows: * he was discharged in the rank/grade of private/E-1 * he was credited with 6 years, 9 months, and 13 days of service * he was awarded an Army Achievement Medal * he served in Iraq from 10 October 2005 through 6 April 2006 * he lost time from 30 October 2007 through 22 November 2007; 8 July 2008 through 10 August 2008; and 12 September 2008 through 5 November 2008 11. The Army Discharge Review Board denied the applicant's request for an upgrade on 18 July 2011. 12. The letter of reference indicates the signee served with the applicant from 2003 through 2004 and worked closely with him during a 15 month deployment. He found the applicant had a high level of responsibility and conducted himself honorably and professionally. 13. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and the letter of support 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 evidence of post-service achievements for the Board to consider. Based upon the record, 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 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 applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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. b. Paragraph 3-7b provides 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 14-12c is to be used for the commission of a serious offense, conviction by civil authorities (if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM), absence without leave, or other actions that a punitive discharge is authorized under the UCMJ. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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, Boards 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. b. 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) AR20170018731 0 4 1