ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 April 2019

	DOCKET NUMBER:  AR20180014646


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

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)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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 states for the last 8 years since his discharge he has, in effect, been a 
stellar citizen.  He waited to submit his application to the Board because he had a 
stroke.

3.  The applicant's service records show:

	a.  He enlisted into the Regular Army, on 13 January 2000, at 18 years of age for a 
term of 3 years.  Following initial training, orders assigned him to Fort Hood, TX; he 
arrived on or about 11 June 2000.  Effective 13 July 2000, his leadership promoted him 
to private (PV2)/E-2.

	b.  On 5 November 2001, his Fort Hood commander preferred court-martial charges 
against him for multiple violations of the Uniform Code of Military Justice (UCMJ).  
On 7 December 2001, a summary court-martial convicted him of the charges.

		(1)  The applicant was charged with the following UCMJ violations:

*	Article 86 (Absent without Leave (AWOL)) – AWOL from 28 September until 
18 October 2001
*	Article 91 (Insubordinate Conduct Toward a Noncommissioned Officer 
(NCO)) – being disrespectful in language and deportment toward two NCOs
*	Article 92 (Failing to Obey a Lawful Order) – failing to obey an order to 
perform radio and security watch by falling asleep; being derelict in his duties 
by failing to remain at his guard post; and failing to have clean and 
serviceable equipment for guard mount formation

		(2)  The court sentenced him to reduction in rank from PV2 to private/E-1 and 
forfeiture of $695 per month for one month.  On 14 December 2001, the convening 
authority signed the Record of Trial by Summary Court-Martial (DD Form 2329).

	c.  On 14 December 2001, the applicant's Fort Hood commander advised him in 
writing of his intent to separate the applicant under the provisions of chapter 
14 (Separation for Misconduct), paragraph 14-12b (A Pattern of Misconduct), Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  The 
commander's stated basis for this action was the applicant's previous acceptance of 
nonjudicial punishment under the provisions of Article 15, UCMJ, and because he had 
been convicted twice by a summary court-martial.  

	d.  Also on 14 December 2001, the applicant declined the opportunity to consult with 
counsel.  On his signed memorandum, he did not indicate whether he had been advised 
of the basis for the contemplated separation action, or that he understood its effects, the 
rights available to him, and the effect of waiving those rights.  He did not choose to 
submit statement in his own behalf.  

	e.  On 18 December 2001, the separation authority approved the commander's 
recommendation and directed the applicant's general discharge under honorable 
conditions.  He was discharged accordingly on 23 January 2002.  His DD Form 
214 indicated he completed 2 years and 11 days of his enlistment.  He was awarded or 
authorized the Army Service Ribbon and two marksmanship qualification badge.

4.  The applicant contends, in effect, he has been a stellar citizen in the years since his 
discharge.  In reaching its determination, the Board can consider the applicant's petition, 
his service record, and his statements in light of the published guidance on equity, 
injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity and no supporting evidence of mitigating circumstances for the 
misconduct. The Board agreed that the applicant’s discharge characterization is 
appropriate for 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the 
interest of justice to do so.  

2.  AR 635-200, in effect at the time, set forth the basic authority for the separation of 
enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was 
separation with honor.  Issuance of an honorable discharge certificate was appropriate 
when the quality of the Soldier's service generally met the standards of acceptable 
conduct and performance of duty, or was otherwise so meritorious that any other 
characterization would clearly be inappropriate.  Where there were infractions of 
discipline, commanders were to consider the extent thereof, as well as the seriousness 
of the offense.  An honorable discharge could be furnished when disqualifying entries in 
the Soldier's military record was outweighed by subsequent honest and faithful service 
over a greater period of time.  It was the pattern of behavior, and not the isolated 
instance, which commanders should consider as the governing factor.

	b.  Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to 
include for a pattern of misconduct and the commission of a serious offense.  Paragraph 
14-12b stated members were subject to separation under this provision when they had 
a pattern of misconduct involving acts of discreditable involvement with civil or military 
authorities and/or conduct that were prejudicial to good order and discipline.

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 on the basis of 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180014646

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