ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  7 June 2019

	DOCKET NUMBER:  AR20190001956


APPLICANT REQUESTS:  His under honorable conditions (general) discharge be 
upgraded to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); 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 he served as a firefighter in the Michigan Army National Guard 
(MIARNG) and was honorably discharged.  He enlisted in the Regular Army and was a 
firefighter.  He is trying to further his emergency medical services (EMS) career and go 
back to school for his paramedic license.  He has applied to use his Post-9/11 GI Bill 
education benefit but must have an honorable discharge.  With a change to his 
discharge, he will be able to show his three children that you can achieve your goals as 
long as you work hard and he will be able to provide a better life for his family.

3.  Following prior service in the ARNG, the applicant enlisted in the Regular Army on 
13 November 2000.

4.  The applicant's immediate commander notified him on 10 October 2001 of his intent 
to initiate separation actions against him under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for 
misconduct – pattern of misconduct.  His commander cited, as the specific reason for 
the proposed separation, the applicant’s involvement in a domestic disturbance case, 
numerous bad checks, and a falsified an Army physical training card in order to reenlist.
5.  The applicant consulted with counsel on 16 October 2001 and was advised of the 
basis for the contemplated action to separate him and of the rights available to him.  He 
acknowledged his understanding and elected to submit a statement in his own behalf.  
However, the statement is not available for review.

6.  The applicant's immediate commander formally recommended his separation from 
service on 17 October 2001, under the provisions of Army Regulation 635-200, 
paragraph 14-12b, by reason of a pattern of misconduct.

7.  The separation authority approved the applicant's separation on 9 November 2001, 
under the provisions of Army Regulation 635-200, paragraph 14-12b.  The separation 
authority suspended the applicant’s elimination from service and determined it would be 
automatically remitted if not vacated before 6 May 2002.

8.  The applicant accepted non-judicial punishment on 25 February 2002, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for avoiding duty 
as a staff driver on or about 14 February 2002.  In his appeal, the applicant stated:

*	he was on medication that caused drowsiness, lightheadedness, dizziness and 
other things that would impair his driving
*	this was a misunderstanding and now that he was not taking any medication and 
his license was signed he would have no problem fulfilling his duties
*	if found guilty he would like his punishment suspended for six months to evaluate 
his job performance

9.  The applicant's immediate commander recommended on 10 April 2002 that the 
applicant’s suspension be vacated and separation from service be imposed.  He further 
stated that in the few short months since the applicant’s arrival, he had been issued an 
Article 15 for malingering and had failed the Army Physical Fitness Test after three 
months of preparation.

10.  The separation authority vacated the applicant’s suspension on 11 April 2002 and 
ordered his elimination from service to be duly executed with the issuance of a general 
discharge.

11.  The applicant was discharged on 10 May 2002.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of 
misconduct.  His service was characterized as under honorable conditions (general).

12.  The Board should consider the applicant's statement and overall record in 
accordance with the published equity, injustice, or clemency determination guidance.




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 discussed the frequency and nature of the applicant’s 
misconduct, his previous honorable discharge from the ARNG and whether to apply 
clemency to this case.  The Board determined that based on the evidence the character 
of service the applicant received was neither in error or unjust and required no 
correction.

2.  After reviewing the application and all supporting documents, the Board determined 
that 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 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 sets forth the basic authority for the separation of enlisted 
personnel. 

	a.  Paragraph 3-7a 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. 

	b.  Chapter 14 of this regulation establishes policy and prescribes procedures for 
separating members for misconduct.  Specific categories include minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, or absences without leave.  Action will be taken to separate a 
member for misconduct when it is clearly established that rehabilitation is impracticable 
or is unlikely to succeed.  A discharge under other than honorable conditions is normally 
considered appropriate.  However, the separation authority may direct a general 
discharge if such is merited by the Soldier's overall record.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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 a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	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, Boards 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)	 AR20190001956

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