ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  19 April 2019

	DOCKET NUMBER:  AR20190000006


APPLICANT REQUESTS:  Correction of his DD Form 214 (Certificate of Release or 
Discharge from Active Duty) to show his characterization of service is honorable in lieu 
of under honorable conditions, general.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Portion of his separation package
*	Ten Statements of Support
*	Daily Journal
*	Positive Counseling
*	Insurance Statement
*	Past Due Account Notice and Counseling Statement
*	Two Letters of Indebtedness 
*	Seven Character References 
*	Two Certificates
*	Two DD Forms 214

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 a highly motivated, squared away Soldier with no 
support, no help, and no sponsorship to help him adjust to his new career.  He was just 
dropped into a new unit and he had to learn from his mistakes.  He does not believe he 
had an opportunity to excel.  

3.  On 9 October 1992, the applicant enlisted in the Regular Army for 4 years.  
4. A review of his records show the applicant received eight General Counseling’s 
between 11 January and 29 June 1993, the applicant was counseled eight times for 
various reasons to include, not paying his telephone bill in the amount of $218, being 
out of uniform, not having his identification card in his possession, writing a check to 
Merchants Tire and Automobile when his checking account did not contain sufficient 
funds to cover the amount of the check, failure to go to his appointed place of duty at 
the time prescribed (on three occasions), and for failure to obey a lawful order not to 
park against the fence on 29 June 1983.
5.  On 3 December 1992, he accepted nonjudicial punishment (NJP) under the 
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for attempting to obtain 
one meal from the dining facility while receiving separate rations.  His punishment 
consisted of a forfeiture of pay, extra duty, and restriction.  

6.  On 16 June 1993, he accepted NJP under the UCMJ for:

*	failing to be at his appointed place of duty at the time prescribed on 3 February 
13 April, and 27 April 1993 
*	failing to shave on 29 April, and 3 May 1993
*	failing to make a payment on his credit program in the amount of $68, at the 
Army and Air Force Exchange Service

7.  His punishment consisted of extra duty, and reduction to pay grade E-2 (suspended).  
On 30 June 1993, the suspended portion of his reduction to pay grade E-2 was vacated, 
based on his failure to obey a lawful order on 29 June 1993.

8.  On 26 July 1993, the applicant's immediate commander notified him of his intent to 
initiate separation action against him in accordance with Army Regulation (AR) 635-200 
(Personnel Separations – Enlisted Personnel), paragraph 14-12(b) by reason of 
misconduct, pattern of misconduct with a general discharge.  The specific reasons cited 
were the above two NJPs, and the counseling’s for failure to be at his appointed place 
of duty and failure to pay debts. 

9.  On 27 July 1993, the applicant acknowledged receipt of the commander's intent to 
separate him.  He consulted with legal counsel who advised him of the basis for the 
contemplated separation action for misconduct, the type of discharge he could receive 
and its effect on future enlistments or reenlistments, the possible effects of this 
discharge, and of the procedures/rights that were available to him.  He acknowledged 
he understood that: 

      a.  He could expect to encounter substantial prejudice in civilian life if a general 
discharge under honorable conditions was issued to him. 

      b.  He could be ineligible for many or all benefits as a veteran under Federal and 
State laws as a result of the issuance of an under other than honorable conditions 
discharge. 
      c.  He submitted a Rebuttal Statement to the Proposed Separation action, in which 
he stated:

*	the separation action was unjustified
*	on 29 June 1993, he was late, because he went to the Department of Public 
Safety to get a new driver’s license
*	he was given a counseling statement for disobeying an order and was 
reduced in rank for parking too close to the motor pool fence, when other 
members of the battalion were not punished for continuing to park there
*	on 10 June 1993, he received NJP for failure to repair on 27 April 1993 and 
on other days in that month, however, the commander took control in May 
1993, he did not witness the events, he pulled his file and used them to 
impose the punishment
*	he was late on 14 June 1993, because his vehicle had broken down, he 
called the charge of quarters CQ to let the command know, he provided a 
receipt for the fan belt
*	on 11 June 1993, he was late for the 0530 and the 0615 formations, because 
he had an appointment the day prior and did not know about those 
formations, his vehicle had also broken down and he called the CQ and the 
log reflected his call
*	on 3 December 1992, he was given an NJP for stealing a meal, he had been 
in the unit a month, he was living in the barracks, and he signed into the 
dining facility using his permanent change of station orders, he did not have 
a meal card, and he had applied for separation rations, but he came the unit 
from the Reserve, he did not have a sponsor, and he did not know he could 
not eat at the dining facility
*	he did not believe his chain of command gave him a chance to excel, he was 
a good Soldier and he should not be separated from the service
*	he had also received good counseling’s, but only one was still in his record
*	he was married and had four children, the oldest was age 6, a general 
discharge would create a hardship for him and his family, he requested a 
rehabilitative transfer

      d.  He also provided ten statements of support, dated between June and July 1993 
that indicated the applicant was singled out for punishment when he parked his car on 
the fence alongside other cars.  They believed he was a good Soldier and he did not 
receive the leadership he should have.  It appears someone may have left a message 
informing the applicant about a 610 formation on an unspecified date, but there is no 
evidence that he got the message timely. 

10.  On 6 August 1993, a Report of Medical Examination, shows the applicant was 
found medically quailed for separation.


11.  Subsequent to his acknowledgement, the applicant’s immediate commander 
initiated separation action against him in accordance with AR 635-200, paragraph 
14-12b, for misconduct.  

12.  On 11 August 1993, the separation packet was determined not legally sufficient 
because it did not include the applicant’s medical and mental status evaluations.  

13.  On 17 August 1993, the applicant was given a psychiatric evaluation with the 
following results:

*	He did not express motivation for continued military service
*	Diagnosis:  No psychiatric disease or defect
*	Findings:  This individual was and is mentally responsible, both to distinguish 
right from wrong and adhere to the right.  He was psychiatrically cleared for 
administrative action deemed appropriate by his chain of command

14.  On 18 August 1993, Chief, Administrative Law found the applicant’s administrative 
separation legally sufficient and in compliance with chapter 14, AR 635-200, paragraph 
14-12(b).

15.  On 18 August 19193, the separation authority approved the applicant's discharge 
from the Army under the provisions of AR 635-200.  The applicant was accordingly 
discharged on 27 August 1993. 

16.  His DD Form 214 shows he was discharged under the provisions of paragraph 
14-12b, AR 635-200, due to misconduct with a general characterization of service, in 
pay grade E-2.  He completed 10 months, and 19 days of active service this period and 
he had no lost time.  His narrative reason for separation is listed as "Misconduct-Pattern 
of Misconduct."  His awards are listed as the National Defense Service Medal and Army 
Service Ribbon.

17.  AR 635-200, states action would be taken to separate a Soldier for misconduct 
when it was clearly established that rehabilitation was impracticable or was unlikely to 
succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge 
for misconduct.  A discharge under other than honorable conditions was normally 
appropriate for a Soldier discharged under this chapter. 

18. Most of the documents the applicant provided were available and considered with 
his rebuttal statement at the time of his discharge.  However, he provided seven 
character references that were not available at the time of discharge that are dated 
between April 2000 and January 2007.  These character references are from a member 
of New Mount Olive Primitive Baptist Church, Sterling Optical where he has worked as 
an optician, a member of the community in which he lives, two members of the Junction 
City Police Department, Kansas, a high school teacher, and the Manager, Englert, 
Incorporated Manufacturer where he has also worked.  All of these individuals speak 
very highly of the applicant.  They have described him as reliable, trustworthy, very 
personable, honest, exhibits good character, dependable, very ambitious, positive 
attitude, excellent work habits, and that he would be an asset to any organization. 

19.  The applicant contends he was a highly motivated, squared away Soldier when he 
was put in a new unit with no one to help him.  He had no sponsor to help him adjust to 
his new career.  He was just dropped into a new unit and he had to learn from his 
mistakes.  He does not be believe he was given an appropriate opportunity to excel in 
the unit.  

20.  He was discharged as result of receiving two NJPs and numerous counseling 
statements for minor offenses.  

21.  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 
guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient 
evidence to grant 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, and agreed to upgrade his 
characterization of service to honorable.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:x	:x	:x	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 for the period of service ending 27 August 1993 showing his 
characterization of service as honorable.


	  
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.  AR 635-200, in effect at the time, set forth the basic authority for the separation of 
enlisted personnel.  Chapter 14 established policy and prescribed procedures for 
separating members for misconduct.  Specific categories include minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, to include abuse 
of illegal drugs; convictions by civil authorities, and desertion or absence without leave.  
Action would be taken to separate a Soldier for misconduct when it was clearly 
established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 
14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A 
discharge under other than honorable conditions was normally appropriate for a Soldier 
discharged under this chapter. 

3.  AR 635-200 also 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. 

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 based on 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190000006

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