IN THE CASE OF: 

		BOARD DATE:  13 October 2022

		DOCKET NUMBER: AR20220004296


APPLICANT REQUESTS: upgrade of his under honorable conditions (general) 
discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States 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 would like to start his college education. 

3.  The applicant enlisted in the Regular Army on 16 January 1998, for 3 years. His 
military occupational specialty (MOS) was 13B (Cannon Crewmember).

4.  The applicant was formally counseled on 6 January 1999 for failure to report.

5.  A mental health evaluation, dated 7 June 1999 shows the applicant reported recent 
depressive symptoms suicidal thoughts related to multiple stressors including a breakup 
with his fiancée. He also described having flown to Texas while on leave and 
considering homicide toward a female that he met there. He was absent without leave 
for several days prior to admission and described driving to, and nearly attempting 
suicide. The was a history of one previous suicide attempt and chronic problems with 
angry outbursts and physical assault. The applicant’s thoughts of suicide and homicide 
had resolved. He was motivated for further treatment and wants to continue on active 
duty. The applicant was diagnosed with adjustment disorder with mixed disturbance of 
emotions and conduct and personality disorder not otherwise specified, with antisocial 
traits. He was scheduled for an outpatient follow-up for the next day.
6.  A sworn statement, dated 13 July 1999, shows the applicant failed to report to 
formation on 1 June 1999.

7.  A letter from Captain/Dr. , the division psychologist, dated 20 August 1999, shows 
the applicant had ongoing outpatient psychological care for the past two months at 
Division Mental Health, Fort Bragg, and one hospitalization in June 1999. Despite these 
aggressive interventions the applicant reports occasional suicidal and homicidal 
ideations, anger problems, and numerous personal stressors which render him 
incapable of effectively functioning in the military. The examining psychologist 
determined the applicant was stable, but his psychiatric history made it extremely 
unlikely he would be able to effectively complete his term of military service. Therefore, 
it was his recommendation that the applicant be separated from further military service 
in accordance with governing regulations.

8.  The applicant was formally counseled in November 1999 for the following areas of 
concern: domestic problems, attitude, motivation, recommendation for courts martial, 
fraud, lying to chain of command, falsifying sworn statements, MOS knowledge and 
Central Intelligence Division (CID) investigation.

9.  A Statement of Medical Examination and Duty Status, dated 19 November 1999, 
shows the applicant suffered a closed head injury on 8 October 1999, following an 
airborne jump while at Joint Readiness Training Center rotation. The injury was in the 
Line of Duty.

10.  A DA Form 3822 (Report of Mental Status Evaluation), dated 2 December 1999, 
shows the applicant had the mental capacity to understand and participate in 
proceedings deemed appropriate by command. There was no evidence of an emotional 
or mental condition of sufficient severity to warrant disposition through medical 
channels.

11.  On 2 December 1999, the applicant was admitted at the Womack Army Medical 
Center for evaluation. The applicant had been experiencing signs and symptoms of 
depression and having difficulty with command. A current CID investigation was a 
precipitating stressor for his suicidal ideation. He was diagnosed with major depressive 
disorder and partner relational problems. He was scheduled for outpatient follow-up 
within 72 hours and was recommended for expeditious chapter from service.

12.  The applicant was formally counseled on 13 December 1999 for failing to follow 
instructions and disobeying an order from a commissioned officer, on or about 
8 December 1999.

13.  The applicant accepted non-judicial punishment (NJP) on 13 December 1999, 
under the provisions of Article 15 of the Uniform Code of Military Justice, for with intent 
to deceive, making an official statement, which was then known by the applicant to be 
false. His punishment consisted of reduction to private/E-2, forfeiture of $251.00 for one 
month, restriction, and extra duty.

14.  On 12 January 2000, the applicant's immediate commander notified the applicant of 
his intent to initiate separation actions against him, under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, for 
misconduct – pattern of misconduct. As the specific reasons, his commander noted two 
incidences of failure to report, disobeying a commissioned officer, and NJP.

15.  The applicant consulted with counsel on the same date and was advised of the 
basis for the contemplated actions to separate him and of the rights available to him. He 
understood that he might expect to encounter substantial prejudice in civilian life. He 
acknowledged his understanding and elected not to submit a statement in his own 
behalf.

16.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason 
of a pattern of misconduct. The separation authority approved the recommended action 
on 20 January 2000 and directed the issuance of a general, under honorable conditions 
discharge.

17.  The applicant was discharged on 11 February 2000. His DD Form 214 (Certificate 
of Release or Discharge from Active Duty) shows he was discharged under the 
provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct. 
His characterization of service was under honorable conditions (general). He completed 
2 years and 26 days of active service. He was awarded or authorized the: Army Service 
Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Parachutist 
Badge.

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


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, 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.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:X	:X	:X	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.
		  
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 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 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.  Chapter 14 of this regulation establishes policy and prescribes procedures for 
separating members for misconduct. Specific categories include minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, or absences without leave. 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 
considered appropriate. However, the separation authority may direct a general 
discharge if such is merited by the Soldier's overall record.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and 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//
ABCMR Record of Proceedings (cont)	 AR20220004296


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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