ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  24 September 2019

	DOCKET NUMBER:  AR20190009112


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States), dated 16 June 2019
*	DD Forms 214 (Certificate of Release or Discharge from Active Duty), for the 
periods ending 3 January 1995 and 17 July 2006
*	National Guard Bureau (NGB) Form 22 (Report of Separation and Record of 
Service), for the period ending 27 August 2011

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 was young and made some bad decisions; however, over 
the years he became more mature.  He joined the Army National Guard (ARNG) and 
served for seven years.  He served an 18 month tour in Iraq and was honorably 
separated.  He finished his time in the ARNG and received an honorable discharge from 
there as well.  He obtained the rank/grade of sergeant/E-5.

3.  The applicant enlisted in the Regular Army on 27 August 1991.

4.  The applicant accepted non-judicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the 
indicated offenses:

*	on 24 February 1993, for wrongfully operating a vehicle that was registered as 
non-operational, and for transferring unauthorized plates to the same vehicle, on 
or about 14 December 1992
*	on 10 November 1993, for wrongfully damaging government property, on or 
about 11 September 1993

5.  Court-martial charges were preferred against the applicant on 11 January 1994, for 
violations of the UCMJ.  The relevant DD Form 458 (Charge Sheet) shows he was 
charged with being absent without leave (AWOL), commencing on or about 9 December 
1993 until an unknown date [Charge Sheet initiated prior to his return to military control].  
It appears he was returned to military control on or before 21 December 1993.

6.  The applicant's record is void of documentation related to the outcome of his court-
martial charges.

7.  The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the 
following dates for the indicated offenses:

*	on 22 June 1994, for being AWOL from on or about 21 December 1993 through 
on or about 4 January 1994
*	on 1 September 1994, for being drunk while on duty, on or about 22 July 1994 

8.  The applicant's record contains a DA Form 4856 (General Counseling Form) that 
shows he was counseled on 30 September 1994 for being AWOL from on or about 
8 February 1994 through on or about 16 February 1994, as well as his previous NJPs 
for AWOL, destruction of government property, and being drunk on duty.

9.  The applicant's immediate commander notified the applicant on 1 December 1994 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 – patterns of misconduct.  The commander cited, as the specific reasons 
for the proposed separation actions, the applicant’s four Article 15s and three 
counseling forms for misconduct.

10.  The applicant acknowledged receipt of the proposed separation memorandum on 
the same date.  He consulted with counsel and waived his right to consideration of his 
case by a board of officers and personal appearance before a board of officers, and 
declined to submit statements in his own behalf.

11.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of Army Regulation 635-200, Chapter 14, by reason of 
misconduct.  The separation authority approved the recommended action on  
19 December 1994 and directed the issuance of an UOTHC discharge.

12.  The applicant was discharged on 3 January 1995.  His DD Form 214 confirms he 
was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, 
by reason of misconduct.  His service was characterized as UOTHC.

13.  The applicant provides:

   a.  A DD Form 214, covering the period of 6 January 2005 through 17 July 2006, 
which shows he was honorably released from active duty after having been ordered to 
active duty in support of Operation Iraqi Freedom.

	b.  An NGB Form 22, covering the period of 5 January 2004 through 27 August 
2011, which shows he was honorably discharged from the Pennsylvania ARNG.

14.  The Board should consider the applicant's statement and evidence 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 record of 
service, the frequency and nature of his misconduct and the reason for his separation.  
The Board found in-sufficient evidence of mitigation during his first period of service, but 
further considered his subsequent honorable service as a member of ARNG, his order 
to active duty in support of Operation Iraqi Freedom and service in Iraq and his 
promotion to SGT. Based on a preponderance of evidence, the Board determined that 
the applicant’s character of service should be upgraded as a matter of clemency.

2.  After reviewing the application and all supporting documents, the Board determined 
that partial relief was warranted.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:XXX	:XXX	:XXX	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 3 January 1995 to reflect in item 24 
(Character of Serivce) – “General, under honorable conditions” vice “Under other than 
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 an upgrade 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 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, in effect at the time, set 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.  Paragraph 3-7b provides that 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.

	c.  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 UOTHC 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190009112


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