IN THE CASE OF: 
BOARD DATE: 21 November 2022 
DOCKET NUMBER: AR20220003509
 
APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 
APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record) 
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 service record was spotless before an incident stemming from extreme family circumstances occurred. At first, his command was understanding, but then they went back on their word. 

3. 
On 13 January 1998, the applicant enlisted in the Regular Army for a period of 4 years. Upon completion of initial entry training, he was assigned to a unit at Schofield Barracks, Hawaii. 

4. 
On 1 February 2002, the applicant reenlisted for 6 years in paygrade E-4. 

5. 
The applicant accepted nonjudicial punishment (NJP) for violation of Article 86, of the Uniform Code of Military Justice (UCMJ) on 7 November 2002, for without authority, absenting himself from his unit and remaining so absent from on or about 2 October 2002 to on or about 3 October 2002 and for wrongfully impeding the investigation of his violation of Article 86, on or about 3 October 2002. His punishment consisted of reduction from sergeant/E-5 to specialist/E-4, forfeiture of $500.00 pay per month for two months (one month suspended), extra duty and restriction for 40 days (suspended if not vacated on or before 3 May 2003). 

6. 
DA Forms 4856 (General Counseling Form), dated 13 November and 3 December 2002, show the applicant was counseled for failing to report at the time prescribed to his appointed place of duty on several occasions. He was repeatedly advised that incidents of this nature could result in punishment under the UCMJ, or administrative separation action could be initiated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 

7. 
On 3 December 2002, the applicant underwent a command directed mental status evaluation and was psychologically cleared for any administrative action deemed appropriate by command. 

8. 
The suspended portion of the applicant's NJP was vacated on 4 December 2002, for without authority, absenting himself from his appointed place of duty on or about 13 November 2002. 

9. 
The applicant was formally counseled on 5 December and 11 December 2002, for consideration of separation action and numerous incidences of failure to report for extra duty. 

10. 
The applicant accepted NJP for violation of Article 86, of the UCMJ on 2 January 2003, for without authority, failing to go at the time prescribed to his appointed place of duty on eight separate occasions between 27 November and 10 December 2002. His punishment consisted of reduction from E-4 to private/E-1, forfeiture of $552.00 pay per month for two months, extra duty for 45 days and restriction. 

11. 
On 3 March 2003, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. The reasons for this proposed action were the numerous incidents for which the applicant had received NJP. He was recommending that the applicant receive a UOTHC characterization of service. The applicant acknowledged receipt of the notification memorandum on the same date. 

12. 
The applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him, the rights available to him, and the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He elected to waive his right to consideration of his case by an administrative separation board, consulting counsel, and to submit a statement in his own behalf. 

13. 
The applicant's commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, by reason of a pattern of misconduct with a service characterization of UOTHC. The applicant's battalion and brigade commander's concurred with this recommendation. 

14. 
On 31 March 2003, the separation authority approved the recommendation and directed the applicant be discharged with a service characterization of UOTHC. 

15. 
Orders and the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirm he was discharged on 25 April 2003, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct. He was credited with 5 years, 3 months, and 13 days of net active service this period. His service was characterized as UOTHC. His awards and decorations include the Army Achievement Medal (2nd Award) and the Noncommissioned Officer's Professional Development Ribbon. 

16. 
Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 

17. 
Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 


BOARD DISCUSSION: 
1. 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 

2. 
The Board agreed the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board found the applicant’s service does not meet the criteria for an honorable discharge characterization. However, the Board did note that the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict the applicant’s period of honorable service by granting a partial upgrade. 


BOARD VOTE: 
Mbr 1  Mbr 2  Mbr 3  
:  :  :  GRANT FULL RELIEF  
:X  :  :X  GRANT PARTIAL RELIEF  
:  :  :  GRANT FORMAL HEARING  
:  :X  :  DENY APPLICATION  

BOARD DETERMINATION/RECOMMENDATION: 
1. 
The Board determined the evidence presented sufficient to warrant a partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the service period ending 25 April 2003 to show "Continuous honorable service 19780705 to 19810427." 

2. 
The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any other relief not stated above. 


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. 


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. 
Paragraph 3-7b states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include 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). 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 appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 


3. 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. 
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