ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 July 2019

	DOCKET NUMBER:  AR20180014680


APPLICANT REQUESTS:  The applicant requests upgrade of his general under 
honorable conditions discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD 
Form 149 (Application for Correction of Military Record).

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 was harassed by fellow Soldiers who made him party with 
them.  This made him late a few times and caused him to receive a general discharge.  
He was a top notch Airborne Infantry Soldier.  He suffered long enough with his current 
discharge.

3.  On 14 November 2000, at the age of 21 years old, the applicant enlisted in the 
Regular Army for a term of 4 years.

4.  He was counseled on three occasions for being absent without leave (AWOL), failing 
to be at his appointed place of duty, missing first call, first formation, and missing the 
initial and final manifest for an airborne operation.

5.  He accepted nonjudicial punishment (NJP) on:

*	3 August 2001 for failing to go at the time prescribed to his appointed place of 
duty and being AWOL from 6 July 2001 and remaining absent until 11 July 2001
*	28 February 2002 for failing to go at the time prescribed to his appointed place of 
duty and being derelict in the performance of his duties by failing to show up for 
the final manifest

6.  The applicant’s immediate commander notified the applicant that he was initiating 
separation actions against him under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b (a pattern 
of misconduct).  

7.  The applicant acknowledged he had been notified of the pending separation action 
against him and he had been advised by his consulting counsel of the basis for the 
contemplated action, understood his rights, and elected not to submit statements in his 
own behalf.

8.  The intermediate commander recommended approval of the separation and the 
appropriate commander approved the recommendation for separation and directed that 
the applicant be discharged with a characterization of service as general under 
honorable conditions.

9.  On 12 April 2002, the applicant was discharged accordingly.  His service was 
characterized as under honorable conditions (general) under AR 635-200, paragraph 
14-12b.  He completed 1 year, 4 months, and 21 days of net active service this period.  
His DD Form 214 (Certificate of Release or Discharge from Active Duty) as amended by 
DD Form 215 (Correction to DD Form 214), shows he was awarded or authorized:

*	Army Service Ribbon
*	Rifle Expert Marksmanship Qualification Badge
*	Parachutist Badge
*	National Defense Service Medal
*	Global War on Terrorism Service Medal

10.  The applicant states he was harassed by fellow Soldiers who made him party with 
them.  This made him late a few times and caused him to receive a general discharge.  
He was a top notch Airborne Infantry Soldier.  He suffered long enough with his current 
discharge.  His record shows he enlisted at the age of 21 years old, he was counseled 
on three occasions, and he accepted NJP on two occasions; one for being AWOL for 
5 days.  He served 16 months and 21 days of his 48 months contractual obligation.

11.  AR 15–185 (Army Board for Correction of Military Records), paragraph 2-9 states 
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.

12.  AR 635-200, Chapter 14 (Misconduct), Section III, acts or patterns of misconduct, 
paragraph 14-12b, was a separation for a pattern of misconduct.  The issuance of a 
discharge under other than honorable conditions (UOTHC) was normally considered 
appropriate for discharges under Chapter 14.  In a case in which an UOTHC is 
authorized by regulation, a member may be awarded an honorable or general 
discharge, if during the current enlistment period of obligated service he has been 
awarded a personal decoration or if warranted by the particular circumstances of a 
specific case.

13.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published DOD guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his age at 
enlistment, the length of his service, the frequency and nature of his misconduct and 
whether to apply clemency.  The Board found insufficient mitigating factors to overcome 
the misconduct and found the applicant provided no post-service accomplishments or 
letters of reference in support of a clemency determination.  The Board determined that 
the character of service the applicant received at discharge was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found the 
relief was not warranted.
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 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 15–185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records (ABCMR).  
Paragraph 2-9 states 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set forth the basic authority for the administrative separation of 
enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types 
of misconduct.  The issuance of a discharge under other than honorable conditions 
(UOTHC) was normally considered appropriate for separations under the provisions of 
chapter 14.  In a case in which an UOTHC is authorized by regulation, a member may 
be awarded an honorable or general discharge, if during the current enlistment period 
of obligated service he has been awarded a personal decoration or if warranted by the 
particular circumstances of a specific case.

   a.  Paragraph 14-12b, a pattern of misconduct, provided for the separation of a 
Soldier due to discreditable involvement with civil or military authorities and conduct 
prejudicial to good order and. discipline.  Discreditable conduct and conduct prejudicial 
to good order and discipline includes conduct violative of the accepted standards of 
personal conduct found in the Uniform Code of Military Justice, Army regulations, the 
civil law, and time-honored customs and traditions of the Army.
   
   b.  Chapter 1, paragraph 1-18 waives the rehabilitation transfer because it would not 
be in the best interest of the Army as it would not produce a quality Soldier.
   
   c.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.  

4.  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.  

   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, 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.  
   
   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.
   

ABCMR Record of Proceedings (cont)	 AR20180014680

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