ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 August 2019

	DOCKET NUMBER:  AR20190006743


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)
*	Continuation Statement
*	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 while in Bosnia he was lumped in with a group of Soldiers who 
were caught consuming alcohol.  The evidence showed he was not involved, but one of 
his Soldiers was.  The whole group was steamrolled into a court-martial.  He elected a 
chapter 10 discharge, in lieu of court-martial, because he did not think he would get a 
fair trial.  

      a.  The Judge Advocate General (JAG) was counsel for the whole group, he did not 
give either of them individual counsel.  He was encouraged to take the chapter 10 
discharge.  He thrived as a Soldier at Fort Bragg, NC.  He believes he was given bad 
advice by the JAG, and he was treated unjustly by his chain of command.  

      b.  The charge turned out to be a career ender.  Since being discharged he has 
done well, he has raised a family and his son is on a Reserve Officers’ Training Corps 
scholarship and reenlisted.  He is the Director of Business Development for a major ship 
yard and he is active with a veteran’s charity.  He is not making this request for 
veteran’s benefits.  He wants to restore the honor that was taken away from him when 
he was deployed in 1996.  

3.  On 18 February 1993, the applicant enlisted in the Regular Army for 4 years.  He 
held military occupational specialties 12B (Combat Engineer).  

4.  On 15 December 1994, he voluntarily extended his 4 year enlistment by 1 month to 
meet the service remaining requirement for an overseas tour to Germany.  His new 
expiration term of service date was 7 March 1997.  He was assigned to Germany as a 
combat engineer on 15 February 1995.

6.  On 24 February 1996, the applicant and several members of his unit were arrested 
by the Zupanja, Croatia Police Department for being drunk and disorderly at a pub.  The 
police report states: 

      a.  There was a verbal altercation with two soldiers (not the applicant) who during 
the altercation damaged a vehicle belonging to a civilian by smashing a headlight and 
threatening him with a concealed knife.  The soldiers had fled the scene in two military 
vehicles upon arrival of the military police.  A search of the area resulted in the two 
soldiers being apprehended with various containers of alcohol and a M9 bayonet.  The 
military police located and apprehended the two drivers of the vehicles that fled the 
scene.  One of the two drivers was the applicant, who made verbal threats and began a 
physical altercation with the military police when he was apprehended. The applicant 
was one of the four soldiers who waived his rights and admitted to failure to obey a 
lawful order.       

      b.  Coordination with the staff judge advocate shows there was insufficient evidence 
to title anybody with drunk driving.  All other charges had sufficient evidence. 

      c.  An alcoholic influence report shows he was suspected of moderate alcoholic 
consumption.

7.  On 14 March 1996, court-martial charges were preferred against the applicant for the 
following offenses:

*	being absent from his appointed place of duty (Camp Harmon near Gradiste, 
Croatia) without authority from 24 to 25 February 1996
*	wrongfully consuming alcoholic beverages while deployed in support Operation 
Balkan Endeavor in Croatia and Bosnia Herzegovina
*	resisting apprehension by an armed forces policeman on 25 February 1996, near 
Gradiste, Croatia
*	operating a vehicle while drunk or impaired by 0.10 grams of alcohol per 100 
milliters of blood or greater, as shown by a chemical analysis
*	Wrongfully appropriating an ”M977 HEMTT” vehicle of a value of about 
$143,871, the property of the U.S. Government, on 25 February 1996
*	assaulting a military policeman in the performance of his military duties, by 
pushing him in the chest with his hands on 25 February 1996
*	being drunk and disorderly and bringing discredit upon the armed forces on 
25 February 1996

8. On 10 April 1996, the applicant consulted with legal counsel and he was advised of 
the basis for the contemplated trial by court-martial for an offense punishable by a bad 
conduct discharge or a dishonorable discharge, the maximum permissible punishment 
authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a 
request for discharge, and of the procedures and rights that were available to him.  
Following consultation with legal counsel, he requested discharge under the provisions 
of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted 
Personnel), for the good of the service - in lieu of trial by court-martial.  He elected to 
submit a statement in his own behalf requesting no less than a general discharge.  
Additionally, his statement outlined his history growing up and his service.  He indicated:

     a.  That he enlisted in the Army for the G.I. Bill.  After attending basic training and 
advanced individual training at Fort Leonard Wood, he went to Fort Bragg, NC, and he 
was assigned to Company C, 27th Engineer Battalion.  He performed well and in 17 
months he was promoted to specialist four.  

     b.  While assigned to the 27th Engineer Battalion, he was deployed to many 
countries including Costa Rica, Honduras, Panama, and Haiti.  He was also deployed to 
many States.  They include two rotations to “JRTC, Fort Polk, LA, the Simon Bolivar 
Brigade train up with 7th Group Special Forces, Fort Chaffee, AK, and the raid on the 
Philpott Dam, VA.  He also deployed on construction projects at Ellis Air Force Base, 
and Pearson Ridge LA.  

     c.  He deployed with the 27th Engineer Battalion in support of Operation Uphold 
Democracy and was on the ground for the first 41 days of the operation.  He attended 
drivers training at the 20th Engineer Brigade, the Pre-Ranger course, and Airborne 
School.  He participated in 28 jumps from CH-47, C- 130, C- 141 , and UH-1 aircraft.  In 
December 1994 he received levy orders and in February 1995 he was permanently 
assigned to the HHC Support Platoon, 16th Engineer Battalion, Bamberg Germany as a 
HEMMT driver.  He went through three Hohenfel rotations and one gunnery rotation in 
Grafenwoher. 

     d.  In April 1995 he attended the “USAEURA Hazardous Cargo Handlers course.”  In 
September 1995 he took over as squad leader for the Support Platoons 1st Squad.  As 
a specialist four squad leader he was responsible for 3 Soldiers, 1 10k forklift, 2 M998 
HMMWV's, 2 HEMAT trailers, 2 M977 HEMTT's, and 1 M985 HEMMTT.  Other 
responsibilities included 1/3 of the platoon's responsibility for ammunition draws, turn-
ins, and issues to the battalion.  As a result, he made frequent trips to ASP's, racking up 
about 6,000 accident free miles on his vehicle.  

     e.  He had received 5 AAM's, National Defense Medal, Army Expeditionary Medal, 
Presidential Unit Citation, Novice Jump Wings, 2 Orders of Lenin Awards (JRTC), and 
Certificate of Achievements from the 7th Group Special Forces and the US Army 
Southern Command-Panama.  

     h.  He was engaged to be married to a German National.  He had planned on re-
enlisting to support his soon to be family.  He felt that he had too much to lose risking a 
court martial so he was asking for approval of an administrative discharge. 

     i.  He had no home nor a job waiting for him as a civilian.  He was not one to give up, 
but receiving a discharge under other than honorable conditions would make things 
tough.  He requested that his service record be considered in support of no less than a 
general discharge under honorable conditions.

9.  On 11 April 1986, the applicant’s commander, first sergeant, and the applicants 
section sergeant all recommended approval of his request with no less than a general 
discharge.  They all wrote glowing recommendations, stating the applicant was highly 
professional, hardworking, dedicated to duty and country, considered one of the best 
Soldiers in the company, and considered a valued asset to his unit and the battalion.

10.  On 14 April 1996: 

       a.  His immediate commander submitted a memorandum, subject: Request for 
Discharge in Lieu of Court-Martial requesting the applicant be issued a general 
discharge under honorable conditions based on his personal and professional conduct 
and having no record of non-judicial punishment or adverse action, and was, as 
exemplified in the attached recommendation letters, an excellent soldier with a bright 
future in the Army.  It further states, in pertinent part: 

	(1)  An examination of the evidence against the applicant shows he did not 
damage property nor was he armed with a weapon the evening of the incident.  A close 
scrutiny of the statements of the military police involved in apprehending the applicant, 
reveal that the applicant had no reason to believe the two persons roughly attempting to 
awaken him where military police, and as such had no intent to resist being 
apprehended.  Nowhere in Private M__'s statement did he note that they identified 
themselves as military police while attempting to wake the applicant.   Specialist K__ 
advised he identified himself as a military police and noted the applicant was still asleep 
in his sleeping bag and his eyes were closed.   Section III disclosure shows the 
government noted that the applicant told the first sergeant immediately following the 
incident he was not aware they were military police when they attempted to wake him 
up.  His explanation is corroborated by the fact that once the applicant was fully awake 
(facilitated by the military police throwing him to the ground and handcuffing him), he 
was calm and cooperative. 

	(2)  Both he (the commander) and the first sergeant recommend approval of the 
chapter 10 and the grant of a general discharge.  "While undoubtedly the staff judge 
advocate and likely the battalion and brigade commander will recommend otherwise, 
the opinions of those who know the applicant and have the best opportunity to observe 
him on a daily basis, should be given great weight.  It is not every day that an 
experienced non-commissioned officer such as the first sergeant throws his full support 
behind a soldier in trouble.  His opinion, perhaps most of all should be given great 
weight."

       b.  The battalion commander recommended approval of the applicant’s request with 
the issuance of a general discharge.  

       c.  The brigade commander recommended he be discharged with as under other 
than honorable conditions.  He acknowledges the applicant's past performance as 
outstanding, but indicates the offenses charged with are very serious, the applicant was 
the senior soldier involved in the misconduct, he endangered himself and other by 
driving a military vehicle while under the influence of alcohol and he assaulted a military 
policeman.  

       d.  The senior defense counsel recommended approval of the applicant’s request 
with a general discharge.  He stated prior to the incident the applicant’s personal and 
professional conduct had been excellent.  He had no adverse actions in his past.  He 
was an excellent Soldier with a bright future in the Army.  All of the people who knew 
him best and worked with him on a daily basis recommended the issuance of a general 
discharge.

       e.  The Staff Judge advocate recommended the issuance of an under other than 
honorable discharge.  The offenses charged are serious, but the trial will impose a 
significant burden on the unit during Operation Joint Endeavor.  

11.  On 30 April 1996, the separation authority approved the applicant's request for 
discharge under the provisions of chapter 10, AR 635-200, for the good of the service in 
lieu of trial by court-martial, reduction to the rank of private/E-1, and the issuance of an 
under other than honorable conditions discharge.  

12.  On 15 May 1996 the applicant was discharged accordingly.  His DD Form 214 
shows confirms he completed 3 years, 2 months, and 28 days of creditable active 
military service.  He was authorized or awarded the:  

*	Armed Forces Service Medal
*	Army Achievement Medal (2nd Award)
*	National Defense Service Medal
*	Army Service Ribbon

13.  The applicant’s record shows he was charged with the commission of an offense 
that was 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.  

16.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 
Chapter 10 of this regulation provides, in pertinent part, that a member who has committed 
an offense or offenses for which the authorized punishment includes a punitive discharge 
may, submit a request for discharge for the good of the service in lieu of trial by court-
martial.  The request may be submitted at any time after charges have been preferred and 
must include the individual's admission of guilt.  Although an honorable or general 
discharge is authorized, a discharge under other than honorable conditions is normally 
considered appropriate. 

17.  The applicant contends while in Bosnia he was lumped in with a group of Soldiers 
who were caught consuming alcohol.  The whole group was steamrolled into a court-
martial.  He elected a chapter 10 discharge, in lieu of court-martial, because he did not 
think he would get a fair trial.  The Jude Advocate General (JAG) counsel was counsel 
for the whole group, he did not give either of them individual counsel.  He was 
encouraged to take the chapter 10 discharge.  He thrived as a Soldier at Fort Bragg, 
NC.  He believes he was given bad advice by the JAG, and he was treated unjustly by 
his chain of command.   The charge turned out to be a career ender.  Since being 
discharged he has done well, he has raised a family and his son is on a Reserve 
Officers’ Training Corps scholarship and reenlisted.  He is the Director of Business 
Development for a major ship yard and he is active with a veteran’s charity.  He is not 
making this request for veteran’s benefits.  He wants to restore the honor that was taken 
away from him when he was deployed in 1996.  

      a.  The military police report identifies each Soldier and their offense(s), it does 
not identify the applicant as being drunk and the staff judge advocate determined there 
was not enough evidence to title anyone as drunk driving.  He was charged for not 
being at his place of duty, engagement in prohibited activities by wrongfully consuming 
alcohol and driving a military vehicle while deployed, he resisted apprehension, and 
assaulting a military police by pushing him.  
      
	b.  His immediate commander submitted letters of recommendation for approval 
of a general discharge; specifically requesting the approval authority heavily weigh his 
record of exceptional performance and the recommendations submitted by his 
immediate chain of command.  The battalion commander and senior defense trial 
attorney concurred with approval of a general discharge.

	c.  The available records shows he served 3 years, 1 month and 12 days of 
successful service prior to the offense that led him to request a chapter 10 in lieu of trial 
by court-martial.  Based on his date of discharge he have 1 month and 16 days of 
indiscipline/adverse action in his service history.  He completed 3 years, 2 months, and 
28 days of his 4 years and 1 month military service obligation. 

18.  In making its determination, the Board can consider the applicant’s contentions and 
his service 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 considered the applicant’s statement, his service record 
and length of service, the misconduct that led to his separation, the recommendations of 
his chain of command, the reason for his separation and whether to provide clemency.  
The Board found that his record of service, the circumstances of his misconduct and the 
recommendations of his immediate chain of command partially mitigating and 
considered his statement concerning his post-service conduct and accomplishments in 
support of clemency.  Based on a preponderance of evidence, the Board determined 
that clemency was warranted and that the character of service the applicant received at 
separation should be upgraded. 

2.  After reviewing the application and all supporting documents, the Board found that 
partial relief was warranted.
BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION















BOARD DETERMINATION/RECOMMENDATION:

 1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
his DD Form 214 for the period of service ending 15 May 1996 to show in item 24 
(Character of Service) – “General Under Honorable Conditions”.

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrade of his discharge to “Honorable”..



	  
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.  AR 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states 
applicants do not have a right to a formal hearing before the ABCMR.  The Director of 
the ABCMR may grant a formal hearing whenever justice requires. 

3.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 

      a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has 
committed an offense or offenses for which the authorized punishment includes a punitive 
discharge may, submit a request for discharge for the good of the service in lieu of trial by 
court-martial.  The request may be submitted at any time after charges have been 
preferred and must include the individual's admission of guilt.  Although an honorable or 
general discharge is authorized, a discharge under other than honorable conditions is 
normally considered appropriate. 

      b.  Paragraph 3-7a,states 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. 

      c.  Paragraph 3-7b, states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to a Soldier whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

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.  

      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.






ABCMR Record of Proceedings (cont)	 AR20190006743

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