ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 23 November 2021 DOCKET NUMBER: AR20210006914 
APPLICANT REQUESTS: His under honorable conditions (general) 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), dated 18 August 2020 
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 is requesting an honorable discharge because he is moving forward with his life and believes an upgrade would allow him buy a house, get married, and be able to go to Department of Veterans Affairs (VA) hospitals for any medical conditions. 

3. 
The applicant enlisted in the Regular Army on 30 August 1995. He completed initial entry training and was awarded military occupational specialty 73C (Finance Specialist). He was initially assigned to a unit at Fort Bragg, North Carolina and subsequently reassigned to a unit located in Germany. 

4. 
A Military Police Report shows the applicant was apprehended by military authorities on 9 October 1998, in response to a report he had placed another Soldier in a chokehold during a dispute.  It was noted that the applicant was emitting a strong smell of alcohol, so he was administered a breath test utilizing an intoxilyzer with a result of 


0.256percent blood alcohol content. He was advised of his rights, which he was unable to comprehend due to his high level of intoxication. He was legally processed, to include the rendering of a DD Form 1920 (Alcoholic Influence Report), and was released to his unit. 
5. 
A DA Form 4856 (Developmental Counseling Form), shows the applicant was counseled regarding his arrest for simple assault consummated with battery and for being drunk and disorderly.  The applicant was advised he was being recommended for field-grade punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), that he was being administratively flagged against all favorable actions and barred from reenlistment pending the outcome of the Article 15 hearing.  He was also informed he was being command referred to an alcohol treatment program. 

6. 
A DA Form 2627 (Record of Proceedings under Article 15, UCMJ), shows the applicant accepted field-grade non-judicial punishment on 2 November 1998, under the provisions of Article 15 of the UCMJ, for: 


. violating Article 128, UCMJ, by unlawfully incapacitating another Soldier by locking his arm around the Soldier’s neck, on or about 9 October 1998 
. violating Article 134, UCMJ, by being drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces, on or about 9 October 1998 
7. 
A Military Police Report shows the applicant was apprehended by military authorities on 17 March 1999 in response to a report he had damaged a cash register belonging to the Top Hat Club, by knocking it off a counter and then running from the club to the parking lot where he was detained by club security.  Upon arrival of the military police, the applicant showed signs of intoxication and was uncooperative.  He was allowed to use the latrine in the club and while in there, he broke a wall mirror by striking it with his hands.  He was transported to the military police station, where upon his arrival he was deemed too intoxicated to understand instructions and was not advised of his rights or questioned.  He was released to his unit. The estimated cost of damage was $300.00. 

8. 
A DA Form 4856 shows the applicant was counseled upon return to his unit regarding his arrest for violating Article 109, UCMJ by damaging Non-Appropriated Funds property; violating Article 134, UCMJ for drunk and disorderly conduct; and for being counseled by a military police Desk Sergeant to remove two earrings he was wearing in violation of Army Regulation 670-1 (Uniform and Insignia, Wear and Appearance of Army Uniforms). 


a. 
He was advised that continued conduct of this nature could result in actions to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapters 5, 9, 13, or 14. 

b. 
He was further advised that should he be involuntarily separated, he could receive an honorable discharge, a general discharge under honorable conditions, or an under other than honorable conditions discharge and the potential impact of each type of discharge on future benefits and civilian employment opportunities. He was also informed that although there are agencies that can upgrade discharge 


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characterizations, there is no guarantee that a discharge would be upgraded at a later date. 
9. A DA Form 2627, shows the applicant accepted field-grade non-judicial punishment on 11 June 1999, under the provisions of Article 15 of the UCMJ, for: 
. violating Article 109, UCMJ, by willfully and wrongfully pushing a cash register off of a counter and striking a mirror of an unknown value in excess of $100, the property of the Top Hat Club, on or about 17 April 1999 
. violating Article 134, UCMJ, by being drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces, on or about 17 April 1999 
His punishment included reduction in rank/grade from private first class/E-3 to private/ E-1, suspended to be automatically remitted if not vacated before 10 December 1999; forfeiture of $612.00 pay per month for two months, suspended to be automatically remitted if not vacated before 10 December 1999; and extra duty and restriction for 45 days. 
10. 
A German Police Report shows the applicant was witnessed fleeing the scene of a traffic accident that resulted in damage to three vehicles and a planted flower container on 15 August 1999. 

11. 
A DA Form 2823 (Sworn Statement) rendered by a military police officer shows the applicant was apprehended for the incident that occurred on 15 August 1999 and was also charged with drunken driving on 16 August 1999.  He was processed at the military police station and released to his unit. 

12. 
A DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) shows the suspension of punishments imposed on the applicant on 11 June 1999 were vacated on 14 February 2000. As a result, he was to be reduced to private/E-1 and forfeited $612.00 per month for two months. 

13. 
The applicant's immediate commander notified the applicant on 22 February 2000 that he was initiating action to separate him from service under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. The specific reasons for this action were the applicant committing assault upon another Soldier, being drunk and disorderly on more than one occasion, damaging private property and fleeing the scene of an accident in which he was involved. The commander advised the applicant he was recommending the applicant receive a general, under honorable conditions characterization of service. The applicant acknowledged receipt of this notification on the same day. 

14. 
The applicant consulted with counsel on 23 February 2000 and was advised of the basis for the contemplated action to separate him and of the rights available to him.  He waived his right to have his case considered by an administrative separation board; however, he requested personal appearance before an administrative separation board. He requested his right to be represented by counsel and elected not to provide statements in his own behalf. He 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 that is less than honorable, he may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, he realized that an act of consideration by either board does not imply his discharge would be upgraded. 

15. 
The applicant's company commander formally recommended the applicant's separation on 7 March 2000, under the provisions of Army Regulation 635-200, paragraph 14-12b. 

16. 
The applicant’s battalion and brigade commanders recommended approval of his discharge on 7 March 2000 and 8 March 2000, respectively.  The commanders further recommended that the applicant receive a general, under honorable conditions characterization of service. 

17. 
The applicant submitted a revised elections of rights memorandum, wherein he requested to waive his right to personally appear before and administrative separation board on 15 March 2000. The separation authority disapproved this request on 25 April 


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2000 and directed referral of the applicant’s case to an administrative separation board 
to be convened at his order. 
18. 
The applicant appeared before an administrative separation board on 8 July 2000. During this board, he was allowed to make a statement, as were several witnesses on his behalf.  After careful consideration of all matters presented, the board determined the applicant should be separated from military service and his service should be characterized as general, under honorable conditions. 

19. 
The separation authority approved the administrative separation board's recommendation. Accordingly, the applicant was discharged on 8 August 2000, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct, and his service was characterized as under honorable conditions (general). 

20. 
The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 


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BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense 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 insufficient evidence of in-service mitigating factors for the misconduct. The applicant did not provide evidence of post0service achievements or letters of reference sufficient to support a clemency determination.  
Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust.  
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BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 
XX: XX: 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. 

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. 
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.  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.  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. 
3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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 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. 


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