ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20190001416


APPLICANT REQUESTS:  The applicant requests an upgrade of his characterization of 
service from under other than 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 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 was unaware that he could request a discharge upgrade.  Upon 
his return from Germany, he was unable to adapt and unable to pass his physical 
training test.  He asked his chain of command for help many times and he was told to 
suck it up.  He was treated unjust, and bullied by his superiors.  He was a good Soldier 
who needed help.  He regrets the way his career ended and he asks for forgiveness.

3.  On 10 July 1990, the applicant enlisted in the Regular Army (RA) for 4 years.  He 
held military occupational specialty (MOS) 13B (Cannon Crewmember).  He was 
assigned to Germany from 2 November 1990 to 12 February 1992.  He was assigned to 
Fort Lewis, WA, on 18 March 1992 with duties in his MOS.

4.  On 17 February 1994, he voluntarily extended in the RA for an additional 12 months 
and his new expiration term of service date was 9 July 1995.  

5.  A Bar to Reenlistment Certificate was approved against the applicant on 21 April 
1994 and the bases for the bar to reenlistment are listed as:

      a.  nonjudicial punishment under the provisions of Article 15, Uniform Code of 
Military Justice on:
*	15 July 1992, for violation of Article 112a [wrongful use and possession of a 
controlled substance.  His punishment consisted of reduction to pay grade 
E-1, a forfeiture of pay, extra duty, and restriction
*	26 July 1993, for sleeping on duty [punishment unknown]
*	20 March 1994, for driving with a suspended driver’s license [punishment 
unknown]

      b.  Counseled for nonpayment of just debt:

*	on 5 January 1994, for delinquent Deferred Payment Plan, at the Army Air 
Force Exchange Services
*	on 26 January 1994, for not paying his debt, at “H&R” Sales, Incorporated

      c.  On 6 July 1994, his bar to reenlistment was reviewed and remained in effect.

5.  The applicant left his unit in an absent without leave (AWOL) status from 28 June 
1994 to 24 March 1995. 

6.  On 31 March 1995, court-martial charges were preferred against the applicant for the 
above period of AWOL.

7.  On 3 April 1995, the applicant voluntarily requested discharge under the provisions 
of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations), in lieu of trial by 
court-martial.  He acknowledged he had consulted with counsel, been advised of his 
rights, and understood the elements of the offense for which he was being charged.  He 
acknowledged under no circumstances did he desire further rehabilitation, for he had no 
desire to perform further military service.  He elected not to submit statements in his 
own behalf and declined a separation medical examination.  

8.  On 3 May 1995, the applicant’s immediate commander recommended approval of 
the applicant’s request with the issuance of an under other than honorable conditions 
discharge.  The commander stated the applicant:

*	was charged with a specification of AWOL totaling 269 days
*	was apprehended by civilian authorities and returned to military control
*	had become disillusioned with the military and retention would not be in the best 
interest of the Army

9.  On 8 May 1995, the Chief, Criminal Law Division reviewed the applicant’s discharge 
packet and found it legally sufficient.

10.  On 8 May 1995, the appropriate authority approved the applicant's request for 
discharge in lieu of trial by court-martial, with an under other than honorable conditions 
discharge, and reduction to pay grade E-1.
11.  On 25 May 1995, the applicant was discharged under the provisions of chapter 10, 
AR 635-200, for the good of the service in lieu of court-martial.  His DD Form 214 shows 
he completed 4 years, 1 month, and 16 days of net active service that was 
characterized as under other than honorable conditions.  His dates of time lost are listed 
as 28 June 1994 through 24 March 1995.  His awards included the:

*	Army Good Conduct Medal (1st Award)
*	National Defense Service Medal
*	Army Service Ribbon
*	Overseas Service Ribbon
*	Expert Marksmanship Qualification Badge with Grenade Bar
*	Sharpshooter Marksmanship Qualification Badge with Rifle Bar
*	Driver and Mechanic Badge with “Driver-W” Bar

12.  The applicant's record shows he was charged with the commission of an offense 
punishable under the UCMJ with a punitive discharge.  Discharges under the provisions 
of chapter 10, AR 635-200, are voluntary requests for discharge in lieu of trial by court-
martial.  He voluntarily, willingly, and in writing requested discharge from the Army in 
lieu of trial by court-martial.  All requirements of law and regulation were met and his 
rights were fully protected throughout the separation process.  

13.  The applicant contends that he needed help and he requested help from his chain 
of command.  However, the applicant left his unit in an AWOL status and when he was 
apprehended and returned to military control he voluntarily requested discharge under 
the provisions of chapter 10, Army Regulation (AR) 635-200, in lieu of trial by court-
martial.  He acknowledged he had consulted with counsel, he was advised of his rights, 
and he acknowledged under no circumstances did he desire further rehabilitation, 
because he had no desire to perform further military service.  He elected not to submit 
statements in his own behalf and declined a separation medical examination.  

14.  The available evidence does not show that he was bullied, treated unfairly, or that 
he requested help and he was denied.  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 
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; the applicant had limited creditable service, no wartime service 
and insufficient evidence of mitigating circumstances for the misconduct. Neither did the 
Board find sufficient evidence of post-service honorable conduct that might have 
mitigated the discharge characterization.  The Board agreed that the applicant’s 
discharge characterization is appropriate.

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

     a.  Chapter 10 stated a member who was charged with an offense or offenses for 
which the authorized punishment included a punitive discharge could submit a request 
for discharge for the good of the service in lieu of trial by court-martial.  The request 
could be submitted at any time after charges had been preferred and must have 
included the individual's admission of guilt.  Although an honorable or general discharge 
was authorized, an Undesirable Discharge Certificate was normally furnished for an 
individual who was discharged for the good of the service. 

     b.  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. 

     c.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge. 

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.  

      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)	 AR20190001416

3

1