ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  17 September 2019

	DOCKET NUMBER:  AR20190010362


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552) with self-authored statement
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 28 April 1999
*	four character reference letters, dated between 16 May and 19 May 2019

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 his active duty service was honorable and he was known as the 
best Soldier in the company.  The conditions surrounding his discharge had nothing to 
do with his performance at work in uniform.  He ate, slept, and breathed the infantry.

3.  The applicant enlisted in the Regular Army on or about 14 May 1997.

4.  A Report of Incident, dated 29 January 1999, shows that on or about 19 January 
1999, the applicant attempted to murder an individual by knocking on his front door at 
his off post residence; when the victim answered the door, he was met by a shotgun 
blast that tore off a portion of his lower jaw.  The victim was transported by ambulance 
and further evacuated by life flight to the hospital, where he was listed in critical 
condition in the intensive care unit.  The weapon was recovered from an area close to 
the applicant’s barracks.  The local police reported that the weapon was purchased 
locally on 15 January 1999, as verified by receipt.  The applicant was processed and 
released to the local authorities.

5.  The applicant's commander notified him on 22 February 1999 that he had initiated 
actions to separate him from service under the provisions of Army Regulation 635-200 
(Personnel Separations - Enlisted Personnel), paragraph 14-12c, by reason of 
misconduct - commission of a serious offense.  As the basis for his actions, the 
commander cited attempted murder and illegally transporting a firearm across state 
lines.

6.  The applicant consulted with counsel on 17 March 1999 and acknowledged receipt 
of the notification memorandum.  He waived his right to consideration of his case by a 
board of officers and personal appearance before a board of officers.  He elected to 
submit statements in his own behalf.  In his statement, he stated that based on 
advisement by his civilian attorney, he could not speak to anyone in reference to the 
allegations against him.

7.  The applicant's commander formally recommended his separation on 17 March 
1999, under the provisions of Army Regulation 635-200, paragraph 14-12c.  The 
separation authority approved the recommended discharge on 22 March 1999 and 
directed that he be issued a UOTHC discharge.

8.  The applicant was discharged on 28 April 1999.  His DD Form 214 confirms he was 
discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by 
reason of misconduct.  His service was characterized as UOTHC.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade 
of his discharge.  The ADRB determined he was properly and equitably discharged and 
denied his request on 5 December 2008.

10.  The applicant provides a 6-paged self-authored statement detailing the 
circumstances surrounding his attempted murder charge.  He also provides four 
character reference letters attesting to his conduct, attitude, and duty performance.

11.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicants request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s self-authored statement, the 
serious nature of his misconduct and civil confinement, the reason for his separation 
and whether to apply clemency.  The Board considered the statements of support 
provided from fellow Soldiers, but found the applicant did not provide any supporting 
evidence regarding his serious misconduct or evidence of post-service achievements or 
letters of reference in support of a clemency determination.  The Board found 
insufficient evidence to mitigate the applicant’s misconduct or to apply clemency.  The 
Board determined, based on a preponderance of evidence, 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):

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 sets 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.  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 under other than honorable conditions 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.

ABCMR Record of Proceedings (cont)	 AR20190010362

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