ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  25 November 2020 DOCKET NUMBER:  AR20200003197 


APPLICANT REQUESTS:  correction of his records to restore his rank/grade from private (PVT)/E-1 back to staff sergeant (SSG)/E-6 (Promotable (P)). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Self-Authored Statement

.DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 19 October 1993



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code, section 1552(b); however, the ABCMR conducted a substantive review ofthis case and determined it is in the interest of justice to excuse the applicant's failure totimely file.

2.The applicant states his rank was SSG (P) before he received an administrativedischarge. He was never told by his military attorney that his rank would be reducedfrom SSG/E-6 to PVT/E-1. If he would have known, he would not have requested anadministrative discharge in lieu of trial by court-martial. He explained his reason forchoosing not to deploy which was based on his ex-wife contacting him prior to himleaving for Sinai, Egypt and telling him that she would kill him (their son) if he did notcome and get him (their son).  He did 11 years and 8 months of service and had aspotless record. After arriving to Fort Lewis, WA and communicating to his commanderthat he had no child care for his son and his commander did not believe him, heattempted to take his own life by taking a handful of pills. He has suffered tremendouslyfor his actions the last 26 years and 3 months and is begging for the Board’sunderstanding and forgiveness.

3.A review of the applicant’s service records show:

a.He enlisted in the Regular Army on 16 February 1982. He reenlisted on 16January 1985, 7 January 1988, and 19 December 1991. 
b.He served in Germany from 4 August 1982 to 3 August 1983 and from7 February 1992 to 13 February 1993. 

c.On 19 July 1993, court-martial charges were preferred on the applicant forviolating the Uniform Code of Military Justice (UCMJ). Specifically, the applicant was charged with: 

.one specification of missing movement on 21 June 1993

.one specification of intentionally injuring himself in an attempt to take his ownlife on 21 June 1993



d.The complete facts and circumstances surrounding the applicant’s discharge areunavailable for the Board to review. However, his record contains a memorandum, subject:  Approval of Discharge Under the Provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), Chapter 10, which shows the applicant’s chain of command recommended he receive an other than honorably conditions characterization of service. 

e.On 19 October 1993, the applicant was discharged. His DD Form 214 shows hewas discharged under the provisions of chapter 10 of AR 635-200, in lieu of trial by court-martial. He completed 11 years, 8 months, and 4 days of active service. It also shows he was awarded or authorized: 

.Army Service Ribbon

.National Defense Service Medal

.Army Achievement Medal (2nd Oak Leaf Cluster)

.Army Commendation Medal

.Noncommissioned Officer Development Ribbon with Numeral 2

.Army Superior Unit Award

.Overseas Service Ribbon

.Army Good Conduct Medal (3rd Award)



f.There is no indication the applicant applied to the Army Discharge Review Boardfor an upgrade of his discharge within its 15-year statute of limitations. 

4.By regulation, an individual who has committed an offense or offenses, thepunishment for which, under the UCMJ, includes a bad conduct or dishonorabledischarge, may submit a request for discharge for the good of the service.

5.Also by regulation, when the separation authority determines a Soldier is to bedischarged from the service under other than honorable conditions, he or she will bereduced to the lowest enlisted grade.







6.In reaching its determination, the Board can consider the applicant’s petition and hisservice record in accordance with the published equity, injustice, or clemencydetermination guidance.BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted.  One potential outcome discussed was to grant clemency by granting the applicant’s request based upon the lengthy period of honorable service completed prior to any period of misconduct.  However, based upon the regulatory guidance stating when one receives an Under Other Than Honorable Conditions separation, he or she will be reduced to the lowest enlisted grade, the Board concluded there was insufficient evidence of an error or injustice which would warrant restoring the applicant’s rank to Staff Sergeant.  There was insufficient evidence of post-service achievements or letters of reference to support  a clemency determination.BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : :XX GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XX : 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. 
Revoked certificateX CHAIRPERSON

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. 


REFERENCES: 

1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice.  This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3 year statute of limitations if the Army Board forCorrection of Military Records (ABCMR) determines it would be in the interest of justiceto do so.

2.Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), ineffect at the time, sets forth the basic authority for the separation of enlisted personnel.

a.Paragraph 1-13a (Honorable Discharge) states an honorable discharge is aseparation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. 

b.Paragraph 1-13b (General Discharge) states a general discharge is a separationfrom the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 10 (Discharge for the Good of the Service) states an individual who hascommitted an offense or offenses, the punishment for which, under the Uniform Code of Military Justice, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 

3.AR 600-8-19 (Enlisted Promotions and Reductions), prescribes policies andprocedures governing promotions and reductions of Army enlisted personnel.Paragraph 10-1 (Administrative Reductions) states when the separation authoritydetermines a Soldier is to be discharged from the service under other than honorableconditions, he or she will be reduced to the lowest enlisted grade. Board action is notrequired for this reduction.

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  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 maybe warranted based on equity or relief from injustice.  This guidance does not mandaterelief, 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.  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. 
 
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