BOARD DATE:  8 October 2019

DOCKET NUMBER:  AR20190010222


APPLICANT REQUESTS:  An upgrade of his character of service from general, under 
honorable conditions to fully 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 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.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AC90-09434 on 10 April 1991.

3.  The applicant states his character of service should be up graded because it has 
been more than 30 years since he served in the military and he has been a productive 
citizen.  His general discharge was unjust because he only had 3 days left to his 
expiration term of service (ETS) date.  He was reduced in rank a year earlier for the 
infraction [the assault] that occurred.

4.  On 20 February 1986, he enlisted in the Regular Army for 3 years.  He held military 
occupational specialty 77F (Petroleum Supply Specialist).  He was assigned to Korea 
from 9 November 1987 to 14 February 1989.

5.  A Military Police Report, dated 13 February 1988, shows there was sufficient 
evidence available for the Provost Marshall, Camp Humphreys, Korea, to title the 
applicant for aggravated assault.  


6.  He received nonjudicial punishment under the provisions of Article 15, Uniform Code 
of Military Justice on:

      a.  18 February 1988, for being absent from his appointed place of duty at the time 
prescribed and for failure to obey a lawful order by failing to properly obtain or possess 
a pass before departing on pass.  The punishment imposed consisted of a forfeiture of 
pay, restriction, and extra duty.  He did not appeal the punishment.

      b.  9 March 1988, for aggravated assault by unlawfully striking and cutting another 
Soldier on the arms and knees with a broken bottle.  The punishment imposed 
consisted of reduction to pay grade E-2, a forfeiture of pay, restriction, and extra duty.  

7.  A Memorandum for Record (MOR), dated 13 June 1988, detailing the events 
surrounding the above NJP the applicant received for assault on 9 March 1988, which 
was lost during Team Spirit 1988.  The applicant had continued to receive E-4 pay and 
the forfeitures had not occurred.  The NJP was reconstructed, but the applicant refused 
to sign; it was determined no further punishment would be imposed against him.  The 
MOR also shows he did not appeal this punishment.

8.  Between 1 September and 4 October 1988, the applicant was counseled on four 
different occasions for the following offenses to include, using profanity towards a 
noncommissioned officer during an in ranks inspection; and for writing dishonored 
checks. 

9.  On 3 January 1989, the applicant's immediate commander notified him of the intent 
to initiate separation action against him for misconduct in accordance with Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 
14-12(c), commission of a serious offense, with an under other than honorable 
conditions discharge.  The bases cited for the recommendation was:

*	On 19 January 1988, at 0800, he failed to go to the morning formation
*	On 17 January 1988, he disobeyed the Commander's policy by wrongfully failing 
to properly obtain or possess a pass from the charge of quarters 
*	On 13 February 1988, he unlawfully struck and cut an E-4 on the arm and knees 
with a broken bottle
*	Between 12 July and 27 August 1988, he made and uttered seven checks in a 
total amount of $165 and failed to maintain sufficient funds in the bank for 
payment of the checks
*	On 1 September 1988, he was disrespectful in language toward an NCO, by 
saying to him, "Get the f___ out of my face, I'm not fixing nothing, or words to 
that effect

10.  On 3 January 1989, the applicant acknowledged receipt of the notification.  He 
acknowledged he consulted with legal counsel and was advised of the bases for the 
contemplated separation action for misconduct, the type of discharges he could receive, 
the effect of such a discharge, and of the procedures/rights available to him.  He 
voluntarily waived consideration of his case by an administrative separation board 
contingent upon receiving a characterization or description of service of no less than 
general, under honorable conditions.  He also provided two statements in his behalf.

11.  The applicant submitted a letter appealing the discharge action, he stated He felt 
the discharge and the accusations upon which the action was based were 
inappropriate.  He stated:

      a.  The most serious accusation was the assault of another Soldier.  This incident 
occurred almost a year ago and he received an Article 15 as punishment.  As a result of 
that incident, he was enrolled in Army Drug and Alcohol Prevention Control Program 
(ADAPCP), which he successfully completed in June 1988.  Since then, he had not 
been involved in any alcohol related incidents, his rehabilitation had been proven.  He 
felt this was unfair and unjustified.  No ADAPCP documents are available. 

      b.  The other serious accusation concerns writing checks for insufficient funds
in July and August 1988.  Upon notification by the first sergeant that three of his checks 
had bounced, he immediately paid, picked up the checks, returned to his section 
sergeant, and showed him the receipt.  Later, he learned that four additional checks had 
bounced.  He immediately returned to the noncommissioned officer (NCO) Club and 
asked management to take the money from his military pay, which they agreed, and he 
reported this to his section sergeant.  That checking account is now closed.

      c.  The other allegations which form the basis of this action are a failure to repair, 
being off-post without a pass, and an allegation of being disrespectful toward an NCO.  
He denies any guilt to these.  Furthermore, he feels they are of such a nature as to not 
warrant the harsh consequences of an administrative discharge.

      d.  Finally, in regard to the appropriateness of a chapter 14 action and his 
commander's recommendation that he receive an under other than honorable 
conditions discharge.  He wishes to point out that his former commander, 
Major Kris____, originally initiated a chapter 9 action back in July 1988.  That action, 
was based on substantially the same allegations and he had attached a copy of the 
notification letter.  After his departure and the assumption of command by Major Mak, 
the new commander stopped the original chapter recommendation for a general 
discharge and recommended an under other than honorable conditions discharge.  He 
believes his original commander had more experience with him and was far better 
qualified to recommend an appropriate action against him.

      e.  He recognizes the problems he had, but they were not of the nature to warrant a 
discharge, and certainly are not of such severity as to justify an under other than 
honorable conditions discharge.  He wished to remain in the Army and he deserved a 
second chance.  He requested that the elimination be suspended for 6 month 
probationary period.

12.  He also provided a statement from his previous squad lead who stated that he had 
no problems with the applicant when he was the leader of the Petroleum Section.

13.  On 3 January 1989, his immediate commander recommended that the applicant 
appear before a separation board convened under the provisions of AR 635-200, 
Chapter 14, paragraph 14-12c, for the purpose of determining whether he should be 
discharged before the expiration of his ETS date.

14.  On 9 January 1989, his intermediate commander recommended separation with a 
general discharge.

15.  On 31 January 1989, the separation authority approved the applicant's discharge 
and directed his service be characterized as under honorable conditions (general).  
Accordingly, on 16 February 1989, he was discharged.

16.  The DD Form 214 confirms she was discharged for misconduct – commission of a 
serious offense, under the provisions of AR 635-200, paragraph 14-12c, with service 
characterized as general, under honorable conditions.  He completed 2 years, 
11 months, and 27 days of active service.  

17.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  
Chapter 14 establishes policy and prescribes procedures for separating members for 
misconduct, commission of a serious offense.  Paragraph 14-12c applies to commission 
of as serious offense.  A discharge under other than honorable conditions is normally 
appropriate for a Soldier discharged under this chapter.  However, the separation 
authority may direct a general discharge if such is merited by the Soldier's overall 
record.  

19.  On 13 June 1990, the Army Discharge Review (ADRB) reviewed his discharge and 
determined he was properly and equitably discharged.  As such, the ADRB denied his 
request to change the character and/or the reason for his discharge.  

20.  The applicant contends his character of service should be up graded because it has 
been more than 30 years since he served in the military and he has been a productive 
citizen.  His general discharge was unjust because he only had 3 days left to his ETS 
date.  He also was reduced in rank a year earlier for the assault charge.  It appears he 
was not reduced in rank, because for the assault because that NJP was lost and he 
refused to sign the NJP when it was reproduced.  However, he was given an 
opportunity to continue serving and prove that he could meet the performance and 
conduct requirements of a Soldier.

21.  The applicant was separated under the provisions of AR 635-200, paragraph 14-12c, 
for commission of as serious offense with a general discharge after he was given 
numerous opportunities to rehabilitate.  He failed to go to the morning formation; 
disobeyed the Commander's policy by wrongfully failing to properly obtain or possess a 
pass from the charge of quarters; unlawfully struck and cut an E-4 on the arm and 
knees with a broken bottle; uttered seven checks in a total amount of $165; and he was 
disrespectful in language toward an NCO, by saying to him, "Get the f___ out of my 
face, I'm not fixing nothing, or words to that effect.

22.  He completed 2 years, 11 months, and 27 days of his 3 year enlistment obligation. 

23.  In reaching its determination, the Board can consider the applicant's petition, his 
contention that he was separated 3 days prior to his ETS date, and his service record in 
light of the published Department of Defense 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 and 
length of service, the frequency and nature of his misconduct, his enrollment in 
ADAPCP 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.


 

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):  NA:












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.  Department of Defense Instruction 5505.7 contains the authority and criteria for 
titling decisions.  It states, in pertinent part, that titling only requires credible information 
that an offense may have been committed.  The primary purpose for titling an individual 
as the subject of a criminal report of investigation is to ensure that information contained 
in the report can be retrieved at some future point in time, for law enforcement and 
security purposes.  This is strictly an administrative function.  Regardless of the 
characterization of the offense as founded, unfounded, or insufficient evidence, the 
procedure to administratively remove a titling action from the Defense Central 
Investigations Index (DCII) is to show either mistaken identity or a complete lack of 
credible evidence to dispute the initial titling determination.  

3.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  
Chapter 14 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, convictions by civil authorities, desertion 
or absence without leave.  This regulation also provides:

      a.  Paragraph 14c prescribes separation for commission of a serious offense.  

      b.  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. 

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. 

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190010222


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190010222
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ABCMR Record of Proceedings (cont)	AR20190010222


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