IN THE CASE OF:  
BOARD DATE:  19 October 2022 
DOCKET NUMBER:  AR20220005250 

APPLICANT REQUESTS: 

a.In effect, an upgrade to his DD Form 214 (Certificate of Release or Discharge


from Active Duty) for the period ending on 28 November 1995 to show he received an honorable or general discharge vice an under other than honorable condition (UOTHC) discharge. 

b.A video teleconference appearance before the Board.



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•DD Form 214



FACTS: 

1.The applicant did not file within the three-year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he was part of a troop abuse investigation at his unit. He wastargeted and told to handle the situation in a certain way, which was to go home andwait for communication and then he was charged with being absent without leave(AWOL). At the time, he met with the Chaplain, but he did not get clear guidance onwhat to do. Finally, he turned himself in and wanted to be separated from the Army. Allhe ever wanted to do was serve in his unit, but he was lied to by his command to take aseparation. Up to the point, he was an exemplary Soldier, including being thedistinguished Honor Graduate at basic training and was promoted based on hisexceptional record.

3.The applicant provides his DD Form 214 for the period ending on 28 November1995.

4.A review of the applicant’s service record reflects the following documents:
a.On 2 November 1994, he enlisted in the Regular Army.

b.His duty status was changed from present to AWOL, effective 8 May 1995.



c.DD Form 4187 (Personnel Action) shows he surrendered to military authorities at


Fort Knox, KY on 4 September 1995. 

d.DD Form 458 (Charge Sheet), dated 7 September 1995, shows he was pending


a court-martial for one specification of being AWOL from 14 July 1995 to 4 September 1995. 

e.Memorandum for the Commander, issued by the applicant, dated 7 September


1995, shows he requested a discharge in lieu of trial by court-martial for being AWOL from 13 July 1995 to 4 September 1995. He made the following acknowledgements: 

•He made this request of his own free will and was not subjected to anycoercion whatsoever by any person, and was advised of the implicationsthat are attached to it

•He acknowledged that he understands the elements of the offensecharged and that he is guilty of the charge against him

•He had no desire to perform further military service

•He was afforded the opportunity to consult and consulted with counselwho had fully advised him of the nature of his rights under the UniformCode of Military Justice

•He did not submit any statements in his own behalf



f.Memorandum, dated 7 September 1995, shows the applicant’s command


recommended approval for his request for separation in lieu of trial by court-martial. It states, “his conduct has rendered him triable by courts-martial under circumstances which could lead to a bad conduct or dishonorable discharge. Based on his previous record, punishment can be expected to have a minimal rehabilitative effect. I believe a discharge at this time to be in the best interest of all concerned. There does not appear to be any reasonable ground to believe that the individual is, or was, at the time of his misconduct, mentally defective, deranged or abnormal”.  

g.Characterization of Service Checklist for an administrative discharge reflects the


following information: 

•He had 8 months and 7 days of current service

•He had two periods of AWOL from 8 May 1995 to 14 May 1995 and from14 July 1995 to 3 September 1995

•He was awarded the Army Service Ribbon and the National DefenseService Medal



h.His request for separation in lieu of trial by court martial was approved on 6


October 1995. 

i.Orders 297-8, dated 24 October 1995 shows he was reduced in grade of rank


from an E-2 to an E-1, effective 6 October 1995 and was issued a UOTHC discharge pursuant to Army Regulation 635-200, Chapter 10. 

j.DD Form 214 shows he was discharged on 28 November 1995, and he received


an UOTHC discharge, in lieu of trial by court-martial pursuant to Army Regulation 635-200, Chapter 10. He completed 11 months of net active service this period. This document also shows he has loss time from 8 May 1995 to 14 May 1995 and from  
14 July 1995 to 3 September 1995. 

5.A report from U.S. Army Criminal Investigation Division (CID), Subject: Request forSanitized Report of Investigation (ROI) and/or Military Police Report (MPR) forApplicant, dated 22 August 2022, states, he voluntarily surrendered to military policeafter his period of AWOL, and that he was pending a discharge pursuant to ArmyRegulation 635-200, Chapter 10, In Lieu of a Trial by Court-Martial, effective 28November 1995.

6.The applicant was provided a copy of the CID Report. On 7 September 2022, heresponded and states, the report was a side effect of a more complex situation. A troopinvestigation was underway at his unit based on the abuse, which led to his squadleader being kicked out of the unit. Someone in his unit gave him the suggestion that heshould go home and wait for further instructions. He believes that this person felt hewas the root of the investigation and in hindsight, was not looking out for his interest. Hewas naïve and frustrated at the situation. He tried to reach out to the unit, but he wasbasically cut off from any communication with them. It took him a number of years torecover from this situation, when all he wanted to be was a Ranger. Although he neversought out medical help, if he did, he believes he would have been diagnosed with post-traumatic stress disorder.


BOARD DISCUSSION: 



1.After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service.  Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. 2.The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance ofevidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 



2.The applicant’s request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision.  As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case.


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. 


Microsoft Office Signature Line...
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 militaryrecords must be filed within three years after discovery of the alleged error or injustice.This provision of law also allows the Army Board for Correction of Military Records(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 (Personnel Separations-Enlisted Personnel) sets forth thebasic authority for the separation of enlisted personnel. Chapter 10 of that regulationprovides, in pertinent part, that a member who has committed an offense or offenses forwhich the authorized punishment includes a punitive discharge may submit a requestfor discharge for the good of the service in lieu of trial by court-martial.  The requestmay be submitted at any time after charges have been preferred and must include theindividual's admission of guilt. Although an honorable or general discharge isauthorized, a discharge under other than honorable conditions is normally consideredappropriate.

a.Paragraph 3-7a provides an honorable discharge is a separation with honor.  Thehonorable 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.  Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. 

b.Paragraph 3-7b provides a general discharge is a separation from the Army underhonorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 10 of that regulation provides, in pertinent part, that a member who hascommitted an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records regarding equity, injustice or clemency determinations.Clemency generally refers to relief specifically granted from a criminal sentence andBCMRs may grant clemency regardless of the court-martial forum. However, theguidance applies to more than clemency from a sentencing in a court-martial; it alsoapplies to any other corrections, including changes in discharge, which may bewarranted on equity or relief from injustice grounds. The guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable relief authority. In determining whether to grant relief on the basis of equity, aninjustice, or clemency grounds, BCMRs shall consider the twelve stated principles in theguidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. 

4.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The ABCMR begins its consideration of each casewith the presumption of administrative regularity. The ABCMR will decide cases on theevidence of record. It is not an investigative body. The applicant has the burden ofproving an error or injustice by a preponderance of the evidence. Paragraph 2-11 statesapplicants do not have a right to a formal hearing before the ABCMR. The Director orthe ABCMR may grant a formal hearing whenever justice requires.

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