ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE: 4 November 2019 
DOCKET NUMBER: AR20190003444

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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

   *	DD Form 293 (Application for the Army Discharge Review Board)
   *	Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim)
   *	DD Form 214 (Certificate of Release or Discharge from Active Duty)
   *	U.S. Army Crime Records Center (USACRC) letter
   *	U.S. Army Criminal Investigation Command (CID) Final Report 
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 he was discharged due to an aggravated assault charge; he 
provides proof that CID acknowledged the evidence for this charge was insufficient, and 
that the Federal Bureau of Investigation (FBI) amended one of its report to align with 
this finding.

3.	The applicant provides a letter from USACRC, dated 19 March 2009, as well as a 
final CID report, dated 23 August 2001. The final CID report indicates, although CID 
found enough evidence to show the applicant fled the scene of a traffic accident, there 
was insufficient proof for the following charges: aggravated assault, traffic accident with 
damage, traffic accident with injury, and wrongfully damaging property.

4.	The applicant's service records show:






1




   a.	He enlisted into the Regular Army on 21 October 1999, as a private first class 
(PFC)/E-3, for a 3-year term. On completion of initial training, orders assigned him to 
Fort Drum, NY; he arrived on or about 29 March 2000.

   b.	Per the CID report provided by the applicant, a vehicle driven by the applicant 
struck a Soldier on 24 June 2001; the applicant did not stop to render assistance and 
subsequently fled the scene.

   c.	On 26 June 2001, the applicant accepted nonjudicial punishment (NJP) under 
Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana; 
punishment included reduction to private (PV1)/E-1.

   d.	On 24 September 2001, the applicant accepted NJP for wrongfully leaving the 
scene of an accident without making his identity known.

   e.	On 20 November 2001, the applicant's commander advised him, via 
memorandum, of his intent to separate the applicant under paragraph 14-12b (A Pattern 
of Misconduct), chapter 14 (Separation for Misconduct), Army Regulation (AR)
635-200 (Personnel Separations – Enlisted Personnel).

      (1)	The commander's reasons for this action were based on the applicant's 
breaking restriction, failure to report to duty on several occasions, wrongful use of 
marijuana, and false official statements.

      (2)	A handwritten note was added as paragraph number 14 on the commander's 
memorandum; next to the paragraph are initials matching those of the applicant's. The 
added paragraph stated, "I waive my right to have my case heard by an administrative 
board conditioned upon me receiving a character of service no less favorable than 
general."

   f.	On 20 November 2001, after consulting with counsel, the applicant acknowledged 
counsel had advised him of the basis for the separation action, and had informed him of 
his rights and the effect of waiving those rights. He affirmed he understood he would 
not be entitled to have his case heard by an administrative separation board because 
he had less than 6 years of reserve and active Federal service. The applicant 
requested representation by counsel and indicated his intent to submit statements in his 
own behalf; the statement(s), however, are not available for review.

   g.	On 27 November 2001, the separation authority approved the commander's 
recommendation and directed the applicant's general discharge under honorable 
conditions; on 27 December 2001, the applicant was discharged accordingly. His 
DD Form 214 shows he completed 2 years, 2 months, and 7 days of his 3-year
   



enlistment contract; he was awarded or authorized the Army Service Ribbon and a 
marksmanship qualification badge.

5.	The applicant contends his adverse discharge was based on an alleged aggravated 
assault and that CID later confirmed the charge lacked sufficient proof. The evidence of 
record shows the commander's reasons for separation did not include the alleged 
aggravated assault; instead, the commander listed the applicant's breaking of 
restriction, failure to report to duty on several occasions, wrongful use of marijuana, and 
his false official statements.

   a.	During the applicant's era for service, commanders were to initiate separation 
action against Soldiers who displayed a pattern of misconduct involving acts of 
discreditable involvement with civil or military authorities and/or conduct that was 
prejudicial to good order and discipline.

   b.	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:

 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 record of 
service, the frequency and nature of his misconduct, a CID report and the reason for his 
separation. The Board found insufficient evidence of in-service mitigation to overcome 
the misconduct and the applicant provided no evidence of post-service achievements or 
letters of reference in support of a clemency determination. Based on a preponderance 
of evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust.

2.	After reviewing the application and all supporting documents, the Board found 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.



8/28/2020

	
CHAIRPERSON

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, prescribed policies and procedures for the 
administrative separation of enlisted personnel.

   a.	Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a 
separation with honor. The honorable characterization was appropriate when the 
quality of the Soldier's service generally met the standards of acceptable conduct and 
duty performance.

   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 
showed a pattern of misconduct involving acts of discreditable involvement with civil or 
military authorities, and/or displayed conduct that was 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//