ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20190006510


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions 
discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	U.S. Army Reserve (USAR) Discharge Orders
*	Two National Guard Bureau (NGB) Forms 22 (Report of Separation and Record 
of Service)
*	Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)

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 has honorable discharge orders, dated 20 August 2002, 
which affirm he completed his required service; the orders post-date his Regular Army 
discharge.  They told him his character of service would change, if he completed his 
service.

3.  The applicant provides documentary evidence of his service in the Army National 
Guard (ARNG) and within the USAR:

*	DD Form 214 – entered initial active duty for training on 1 July 1987 and was 
honorably discharged on 21 August 1987
*	NGB Form 22, issued by the Oregon ARNG (ORARNG) – he enlisted into the 
ORARNG on 26 February 1986 and was honorably discharged on 17 April 1989 
so he could enlist into the Regular Army
*	NGB Form 22, issued by the Arizona ARNG (AZARNG) – he enlisted on 29 June 
1998 and was separated on 8 November 1999 with a general discharge under 
honorable conditions due to unsatisfactory participation
*	USAR Personnel Command Orders, dated 20 August 2002 – he was honorably 
discharged from the USAR, effective 20 August 2002 

4.  The applicant's available service record is not complete; apart from a DD Form 214, 
ending 7 August 1990, all documents pertaining to his Regular Army service, to include 
his separation packet, are not available for review.  His DD Form 214 provides the 
following information: 

*	He enlisted into the Regular Army on 18 April 1989
*	At some point prior to his discharge, he was assigned to the U.S. Army 
Personnel Control Facility at Fort Ord, CA
*	He was discharged on 7 August 1990 under other than honorable conditions; 
he completed 1 year and 7 days of active creditable service, with lost time 
from 4 January until 18 April 1990 (105 days)
*	The separation authority was chapter 10 (Discharge for the Good of the 
Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel); the narrative reason for separation was "For the Good of the 
Service – In Lieu of Court-Martial"
*	He was awarded or authorized the Army Service Ribbon

5.  The applicant contends he was told, if he completed his service, his character of 
service would be upgraded to honorable; he subsequently served in the ARNG and was 
honorably discharged from the USAR.

	a.  The absence of the applicant's separation packet means we are unable to 
determine the specific circumstance(s) that led to his discharge.  However, in view of 
the fact his service record contains his DD Form 214, ending 7 August 1990, the Board 
presumes the applicant's leadership completed his separation properly.  

	b.  His DD Form 214 indicates the authority for his separation was chapter 10, 
AR 635-200.  During the applicant's era of service, Soldiers charged with UCMJ 
violations that carried a punitive discharge as a punishment could request separation 
under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial 
by court-martial. 

	c.  The Army has never had a policy of automatically upgrading character of service.  
For consideration of an upgrade, applicants are required to submit applications, within 
statutory time limits, to the Army Discharge Review Board or the ABCMR.

	d.  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 available record 
of service, his separation documents, the absence of a separation packet, the reason 
for his separation from active duty, the documents lost time and whether to apply 
clemency.  The Board found insufficient in-service evidence to mitigate 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 discharge 
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

:XXX	:XXX	:XXX	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 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.  Paragraph 3-7b (General Discharge).  A general discharge was a separation 
under honorable conditions, and applied to those Soldiers whose military record was 
satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 applied to Soldiers who had committed an offense or offenses for 
which the punishment under the UCMJ included a punitive (i.e. bad conduct or 
dishonorable) discharge.  Soldiers could voluntarily request discharge once charges 
had been preferred; commanders were responsible for ensuring such requests were 
personal decisions, made without coercion, and following being granted access to 
counsel.  The Soldier was to be given a reasonable amount of time to consult with 
counsel prior to making his/her decision.  The Soldier was required to make his/her 
request in writing, which certified he/she had been counseled, understood his/her rights, 
could receive an under other than honorable conditions character of service, and 
recognized the adverse nature of such a character of service.  Consulting counsel was 
to sign the request as a witness.

3.  The Manual for Courts-Martial, United States 1969 (Revised Edition), Table of 
Maximum Punishments showed a dishonorable discharge was a punishment allowed 
for convictions of Article 86 (AWOL for more than 30 days), UCMJ.

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.  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.

5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  Paragraph 
2-9 provides guidance on the burden of proof, and states the ABCMR begins its 
consideration of each case with the presumption of administrative regularity, which is 
that what the Army did was correct.  The ABCMR is not an investigative body and 
decides cases based on the evidence that is presented in the military records provided 
and the independent evidence submitted with the application.  The applicant has the 
burden of proving an error or injustice by a preponderance of the evidence.  



ABCMR Record of Proceedings (cont)	 AR20190006510

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