ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  25 July 2019

	DOCKET NUMBER:  AR20180009035


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions 
discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Letters of Support (x4)
*	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 he is trying to get his discharge upgraded on his DD Form 214 
to an honorable discharge.

3.  The applicant provides four letters of support:

	a.  Ms. HS states she has known the applicant for just under a year on a personal 
level and has found him to be a kind and good hearted man full of integrity and 
compassion.  People of all ages gravitate towards him with his contagious laugh and 
easy smile.  He is respectful and seeks out others to shake their hand or give them a 
hug.  She had no hesitations introducing him to her children.  She further noted that he 
has placed the needs of others before himself despite dealing with the recent passing of 
his mother.  

	b.  Ms. TB reiterated the applicant is kind, sincere, and generous.  She has known 
him for the last decade.

	c.  Ms. AW has known the applicant since they were children, approximately 40 
years.  He excelled at sports and has grown up to be a friendly and confident man with 
a great personality.  He has always been very smart and thinks outside the box.

	d.  His aunt, Ms. BM, stated he has shown great strength and character for a young 
man that lost his mother.  He struggled through the process of life, but has not used any 
of those struggles as an excuse to give up.  She has observed him rising above all he 
has faced in life and maintaining a positive and determined attitude.  He has persevered 
and remained a responsible, loving, and caring man.

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

a.	He enlisted in the Regular Army on 12 August 1993.

b.  He served in Haiti from 24 September 1994 to 12 December 1994.

   c.  A memorandum, dated 31 October 1995, from the U.S. Army Criminal 
Investigation Command provided details of a criminal investigation:

*	the applicant was cited for bribery and larceny of government property
*	investigation established that he accepted bribes in return for clearing 
unidentified Soldiers of their TA-50 equipment
*	he was also identified as the person from whom others had learned how to 
solicit bribes from Soldiers
*	the legal office opined on 31 October 1995 that there was probable cause to 
believe the applicant, along with others, committed the offenses of bribery 
and larceny of government property

   d.  On 31 October 1995, he received nonjudicial punishment for failure to obey a 
lawful command to stay away from two Soldiers and for unlawfully striking a Soldier.  
His punishment included reduction to private first class/E-3 and forfeiture of $244.00 for 
one month.

   e.  On 13 December 1995, the applicant’s immediate commander notified the 
applicant of his intent to separate him under the provisions of Chapter 14, Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for commission 
of a serious offense.  The applicant acknowledged receipt of the notification of 
separation action on the same day.  The reasons for my proposed action are: 

*	on or between 1 April 1995 and 1 July 1995 accepting bribe(s) in the amount 
of or about $100.00
*	on or between 1 February 1995 and 21 March 1995 accepting bribe(s) in the 
amount of or about $100.00
*	on or between 17 Jun 95 and 12 Jul 95 stealing TA-50 with a cost greater 
than $100.00, on or between 1 February to 1 July 1995 soliciting another to 
commit the offense of bribery
*	on 7 October 1995 assault consummated by a battery

	f.  On 13 December 1995, after consulting with legal counsel, he acknowledged: 

*	the rights available to him and the effect of waiving said rights
*	he may encounter substantial prejudice in civilian life if a general discharge 
under other than honorable conditions is issued to him
*	he may apply to the ADRB or the ABCMR for upgrading
*	he is ineligible to apply for enlistment in the Army for 2 years after discharge

   g.  On 13 December 1995, the immediate commander initiated separation action 
against the applicant for serious acts of misconduct.  He recommended that his period 
of service be characterized as general, under honorable conditions.  The intermediate 
commander recommended approval

	h.  On 18 December 1995, consistent with the chain of command recommendations, 
the separation authority approved the discharge recommendation for immediate 
separation under the provisions of Chapter 14, AR 635-200, paragraph 14-12c for 
commission of a serious offense.  He would be issued a General Discharge Certificate. 

	i.  He was discharged from active duty on 22 December 1995 with a general, under 
honorable conditions characterization of service.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) shows he completed 2 years, 4 months, and 11 
days of active service.  It also shows he was awarded or authorized:

*	Army Achievement Medal
*	National Defense Service Medal
*	Armed Forces Expeditionary Medal
*	Army Service Ribbon
*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

5.  There is no evidence the applicant has applied to the Army Discharge Review Board 
for review of his discharge within that board's 15-year statute of limitations. 

6.  By regulation, action will be taken to separate a Soldier for misconduct when it is 
clearly established that despite attempts to rehabilitate or develop him or her as a 
satisfactory Soldier, further effort is unlikely to succeed.  

7.  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 not warranted.  Based upon the serious, criminal 
nature of the misconduct which led to the applicant’s separation and the applicant 
already receiving a General Discharge, the Board concluded there is no error or 
injustice which would warrant making a change to the characterization of service.

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.



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 Personnel), in effect at 
the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states 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) states 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 14 of the regulation states action will be taken to separate a Soldier for 
misconduct when it is clearly established that despite attempts to rehabilitate or develop 
him or her as a satisfactory Soldier, further effort is unlikely to succeed.  

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)	 AR20180009035

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