ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  3 July 2019

	DOCKET NUMBER:  AR20180007366


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge From The Armed Force of 
the United States)
*	Letter of Support (2)
*	DD Form 214 (Certificate of Release 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 the Army didn’t consider his entire military career and all the 
good things he did while on active duty, to include receiving awards.

3.  The applicant provides:

	a.  A letter of support from a close friend (MM), which states he has known the 
applicant to be an upstanding citizen.  The friend adds the applicant was not in any 
trouble with the law, and is surrounded by positive people.

	b.  A letter of support from friend (EW), which states he has known the applicant 
since 2014 and he is a person of good, morale character.  Also, he is a family man who 
loves to be around his family and friends.

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

	a.  He enlisted in the Regular Army on 8 July 1986.

	b.  He served in two overseas tours to Germany and South Korea.

	c.  Court-martial charges were preferred on 19 July 1994.  His DD Form 458 
(Charge Sheet) indicates he was charged with:

*	one specification of assault consummated by a battery 
*	one specification of operating a vehicle while drunk
*	one specification of unlawfully slapping a man on the head with an open hand 
slamming the person head against a wall
*	one specification of unlawfully grabbing a man by the hair with his hand
*	one specification of wrongfully communicating a threat
*	one specification of attempting to elude a police officer

	d.  He consulted with legal counsel and on 29 July 1994, 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:

*	if his request was accepted, he could be discharged under other than 
honorable conditions and furnished an Under Other Than Honorable 
Discharge Certificate
*	he may 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

	e.  Consistent with the chain of command’s recommendation, on 10 August 1994 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.

	f.  The applicant was discharged on 12 August 1994.  His DD Form 214 shows he 
was discharged with an under other than honorable conditions characterization of 
service.  He completed 8 years, 1 month and 5 days of active service.  It also shows he 
was awarded or authorized the:

*	Southwest Asia Service Medal with 2 Bronze Stars
*	Kuwait Liberation Medal
*	Army Achievement Medal with 1st Oak Leaf Cluster
*	National Defense Service Medal
*	Good Conduct Medal with 2nd Award
*	Army Service Ribbon
*	Overseas Service Ribbon with 2nd Award
*	NCO Professional Development Ribbon with Numeral 2 
*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar

5.  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.

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 review of the application and all evidence, the Board determined there is sufficient 
evidence to grant partial relief.  The applicant’s contentions and letters of support were 
carefully considered.  The Board applied Department of Defense standards of liberal 
consideration to the complete evidentiary record.  The Board agreed the misconduct 
does not warrant an upgrade to an honorable discharge; however, an Under Honorable 
Conditions (General) characterization is appropriate based upon his demonstrated 
growth through character evidence submitted by the applicant. 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

: :X	:X	: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 partial 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 12 August 1994 showing his character of 
service as under honorable conditions (General).

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to granting an Honorable characterization.
	  
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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180007366

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