ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 8 December 2021 DOCKET NUMBER:  AR20210009985 
APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his under other than honorable conditions discharge to honorable 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for Review of Discharge) 
FACTS: 
1. 
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 AR20100000154 on 29 June 2010. 

2. 
The applicant states, in effect, it's been 24 years since his discharge. He was getting ready to get out on a medical discharge. He is 49 years old and is starting to suffer from the injuries from his military service. He feels his discharge should be upgraded so he can make a benefit claim. He doesn't have his full medical records but he does have the authenticated copy of his permanent profile with required signatures. 

3. 
On 17 September 1991, the applicant, at the age of 20 years old, enlisted in the US Army Reserve (USAR) delayed entry program (DEP) for a period of 8 years. On 7 January 1992, he was discharged from the USAR DEP and entered active duty for a period of 3 years. On 13 January 1992, he entered one station unit training for the military occupational specialty (MOS) of 11B (Infantryman). On 1 May 1992, he arrived at his first duty station in Hawaii. 

4. 
On 8 May 1992, the applicant completed an Oath of Extension of Enlistment extending his enlistment by 4 months to complete a normal overseas tour. 

5. 
On 6 December 1993, the applicant received a permanent profile for degenerative joint disease of his right ankle. He was not allowed to run, jump, march, or road march. 

6. 
On 6 June 1994, the applicant's commander recommended the applicant not be awarded the Army Good Conduct Medal for his period of service from 21 January 1992 

to 7 June 1994, because he was receiving a chapter 10 discharge with an other than honorable discharge. The applicant non-concurred with his commander. 

7. 
The applicant's separation packet was not available for the Board's review; however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 7 January 1992 and was discharged on 10 June 1994 in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations) chapter 10 and received an under other than honorable characterization of service. He had served 2 years, 5 months, and 4 days of active duty service. He was authorized or awarded the Army Service Ribbon, National Defense Service Medal, and Sharpshooter Marksmanship Badge with Rifle Bar. 

8. 
On 14 October 2009, the applicant petitioned the Army Board for Correction of Military Record (ABCMR) requesting an upgraded discharge. On 1 July 2010, the ABCMR sent the applicant a letter stating the Board considered his application under procedures established by the Secretary of the Army and denied his request. 

9. 
The applicant is requesting an upgrade of his discharge stating it has been 24 years since his discharge. He was supposed to be released on a medical discharge due to a permanent profile and is now having issues with the injuries he received while in the Army and wishes to make a benefit claim. 


a. 
The applicant's service records contained a permanent profile for degenerative joint disease of his right ankle; however, his records are void of evidence he was to be medically discharged. 

b. 
Chapter 10 permitted a Soldier to request discharge in lieu of trial by court-martial when they had committed an offense or offenses which, under the UCMJ, included a bad conduct or dishonorable discharge as a punishment. The Soldier could submit such a request at any time after court-martial charges were preferred. Once approved, an under other than honorable conditions discharge was normally furnished, but the discharge authority could direct a general discharge, if warranted. 

c. 
The absence of the applicant's separation packet means we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. This presumption notwithstanding, the lack of a separation packet represents an administrative irregularity. The version of the military personnel records regulation in effect at the time, required all case files associated with a Soldier's separation to be permanently placed in the affected Soldier's official military personnel file (OMPF). 

d. 
The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 


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 DoD guidance for consideration of 
discharge upgrade requests. The Board considered the applicant’s statement, the 
record of service, the absence of a separation packet reflecting the frequency and nature of his misconduct, his request for discharge and the reason for his separation. The Board found insufficient evidence in the applicant’s military records that shows in-service mitigation that would overcome 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. Therefore, the Board denied relief. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
XXX XXX XX DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20100000154 on 29 June 2010. 
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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 

2. 
Army Regulation 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. 


a. 
An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. 

b. 
A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. 

c. 
Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. 


(1) 
Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. Commanders were to provide the Soldier a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was then required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 

(2) 
Commanders normally were to issue an under other than honorable conditions character of service to Soldiers voluntarily requesting discharge under chapter 10; however, the regulation gave separation authorities the authority to direct a general discharge under honorable conditions, when merited. 

(3)
The separation authority was the commander exercising general court-martial jurisdiction. 


3. 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. 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, 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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