ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2021 DOCKET NUMBER: AR20210005593 APPLICANT REQUESTS: His bad conduct discharge be upgraded to an under honorable conditions (general) discharge. Additionally, he desires a personal appearance before the Board via video or telephone. 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), dated 8 June 2020 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 15 December 1992 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: a. He makes no excuses for the actions that led to his punishment and separation from the U.S. Army. He did not handle the issues brought on by his family in the U.S. as a Soldier, thus creating an unhealthy way of dealing with the issues by internalizing them. Doing this only led to one of the worst decisions he made in his life. For a person who can count the amount of fights he has ever been in, which are not many, he made a poor choice in going to a place in an unhealthy mindset. Though provoked, he should have maintained restraint and left the place of the incident. This choice came with consequences. b. He served the punishment set upon him without any other instances. For that he was granted clemency. Since his separation, he has been a law abiding citizen and has been very active in serving any community in which he has lived through organizations and charities. He embarrassed his fellow Soldiers and family with his actions and has lived every day with that regret. Though he has tried to do all he can to help his family 1 and community, serving this country as a Soldier is what he valued most. It is with all sincerity and humility that he asks the powers that be, to please upgrade/change his separation status to under honorable conditions as he was told it would be. 3. The applicant enlisted in the Regular Army on 22 August 1989. Upon completion of one station unit training at Fort Benning, GA, he was reassigned to a unit located in Germany. 4. Before a general court-martial on or about 27 February 1992, at Berlin, Germany, the applicant was found guilty of the following violations of the Uniform Code of Military Justice (UCMJ): * assault in which grievous bodily harm was intentionally inflicted, on or about 30 November 1991 * assault with a force likely to produce grievous bodily harm or death, on or about 27 December 1991 * adultery, on or about between 1 May to 27 December 1991 His sentence included his forfeiture of $400.00 pay per month for six months and to be confined for one year. The sentence was approved on 1 May 1992 and ordered executed. 5. The applicant underwent a mental status evaluation on or about 29 May 1992. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he was psychiatrically cleared for any action deemed appropriate by command. 6. A DA Form 4187 (Personnel Action) shows the applicant’s duty status was changed on 13 November 1992, from Confined by Military Authorities to Present for Duty upon completion of his period of confinement. 7. The applicant's commander notified the applicant on 13 November 1992 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. The commander cited the specific reason as the applicant’s conviction by a general court-martial for assault with intent to inflict grievous bodily harm, assault with a force likely to produce grievous bodily harm, assault with a force likely to produce grievous bodily harm or death, and adultery. 8. The applicant consulted with counsel on 13 November 1992 and was advised of the basis for the contemplated action to separate him and of the rights available to him. He voluntarily waived his right to be represented by counsel and elected not to provide statements in his own behalf. The applicant also acknowledged his understanding that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that with a discharge which is less than honorable, he may make application to the Army Discharge Review Board or the ABCMR for upgrading, however, he realized that an act of consideration by either board does not imply his discharge would be upgraded. 9. The applicant's commander formally recommended the applicant's separation on 13 November 1992, under the provisions of Army Regulation 635-200, paragraph 14-12c. He recommended the applicant receive a general discharge, under honorable conditions. 10. The separation authority approved the applicant’s discharge on 18 November 1992, under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the applicant be separated with a general discharge. 11. A memorandum rendered by the applicant’s immediate commander on 3 December 1992, shows the applicant was approved on 18 November 1992 for separation under Chapter 10 (under other than honorable conditions (UOTHC)) on 15 December 1992. His record is void of any documentation indicating he committed a subsequent offense or offenses for which the authorized punishment included a punitive discharge, or that he was being processed for separation under the provisions of Chapter 10. 12. The applicant was discharged on 15 December 1992. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense, and his service was characterized as bad conduct. 13. The applicant’s record contains conflicting information regarding his separation. a. Numerous documents show he was advised that he was being processed for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general discharge, under honorable conditions; he sought counsel for this action; and this action was approved on 13 November 1992. b. His record is void of any documentation indicating he had committed a subsequent offense or offenses for which the authorized punishment included a punitive discharge, or that he was being processed for separation under the provisions of Chapter 10. However, his record contains a memorandum stating he was approved for separation under the provisions of Chapter 10 (in lieu of court-martial) on 18 November 1992 and that his service was to be characterized as UOTHC. c. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense, and his service was characterized as bad conduct. Such service characterizations result from an approved sentence by a general or special court- martial, after such sentence has been affirmed by the appellate authority. 14. The Board should consider the applicant's overall record and the statement he provides in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, evidence in the records and all supporting documents, the Board found that relief was warranted. 2. The Board considered the applicant’s statement, his record of service, the nature of his misconduct, reason for his separation, ecommendations by his chain of command and published DoD guidance for liberal consideration of discharge upgrade requests. 3. The Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : 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 relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending15 December 1992 showing his character of service as under honorable conditions (General). X X 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. 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. A Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. d. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. e. Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter. However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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//