IN THE CASE OF:

BOARD DATE:  12 November 2019

DOCKET NUMBER:  AR20190006088


APPLICANT REQUESTS:  The applicant requests her general under honorable 
conditions discharge be upgraded 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)

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 requests and upgrade to her discharge because she was informed by 
her command that her discharge would be upgraded to honorable after 6 months of 
separation from the Army.

3.  On 1 August 2002, at the age of 17, she enlisted in the Army Reserve (USAR) 
Delayed Entry Program (DEP).  On 10 July 2003, she enlisted into the Regular Army for 
a period of 3 years.  She successfully completed training and reported to her first unit of  
assignment in Korea on or about 23 November 2003.   The highest rank she obtained 
was Private (E1) on 10 July 2003.

4.  On 22 February 2004, the applicant was charged with violations of 4 Articles of the 
Uniform Code of Military Justice (UCMJ):

*	Article 86 for failure to repair
*	Article 91 for insubordinate conduct toward a warrant officer, noncommissioned 
officer, or petty officer
*	Article 92 for failure to obey and order or regulation
*	Article 134 for disorderly conduct

5.  On 25 February 2004, she consulted with legal counsel and was advised of the basis 
for the trial by court-martial and her available rights and the basis for voluntarily 
requesting discharge under the provision of Army Regulation 635-200, chapter 10.  She 
acknowledged she could be ineligible for many or all Army and/or Department of 
Veterans Affairs benefits and opted not to submit a statement on her own behalf.

6.  On 27 February 2004, the appropriate authority approved the applicant’s request in 
lieu of trial by court-martial, directing that her service be characterized as under 
honorable conditions (general).

7.  On 10 March 2004, she was discharged accordingly.  Her DD Form 214 shows she 
completed 8 months and 1 day of net active service including 3 months and 18 days 
foreign service, and is authorized to wear:

*	National Defense Service Medal
*	Korean Defense Service Medal
*	Army Service Ribbon

8.  Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-
lieu of trial by court martial.  In doing so, she would have waived her opportunity to 
appear before a court-martial and risk a felony conviction.  A under other than 
honorable conditions is authorized and normally considered appropriate; however, a 
member may be awarded an honorable or general discharge, if during the current 
enlistment period of obligated service she has been awarded a personal decoration or if 
warranted by the particular circumstances of a specific case. 

9.  The applicant contends she was advised by her chain of command that her 
discharge would be upgraded to honorable after 6 months of separation.  The U.S. 
Army does not have, nor has it ever had, a policy to automatically upgrade 
discharges.  Each case is decided on its own merits when an applicant submits an 
application to either the Army Discharge Review Board or the ABCMR requesting 
change in discharge.  Changes may be warranted if the ABCMR determines that the 
characterization of service or the reason for discharge or both were improper or 
inequitable.  The Defense Discharge Review Standards specifically state that no factors 
should be established that require automatic change or denial of a change in discharge.

10.  In reaching its determination, the Board can consider the applicant’s petition and 
her service record in accordance with the published equity, injustice, or clemency 
guidance.




BOARD DISCUSSION:

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, her record of 
service, the frequency and nature of her misconduct, the reason for her separation and 
whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors 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.  


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.


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 (Personnel Separations – Enlisted Personnel), 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, a discharge under other than honorable conditions was 
normally issued to 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.

     d.  An UOTHC is an administrative separation from the service under conditions 
other than honorable.  It may be issued for misconduct.  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. 

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 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190006088


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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