IN THE CASE OF:  BOARD DATE:  24 October 2022 DOCKET NUMBER: AR20220002542 


APPLICANT REQUESTS:  an upgrade of the character of his service from under honorable conditions (general) to honorable. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

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

•DD Form 214 (Certificate of Release or Discharge from Active Duty)



FACTS: 

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

2.The applicant states, in effect, after being discharge from the U.S. Army he becamea better person. He went to school and received his undergraduate degree in GeneralBusiness. He has been employed with the Department of Agriculture since 2020.

3.The applicant enlisted in the Regular Army on 30 August 2001. The highest grade heheld was private/E-2.

4.The applicant’s record includes acts of indiscipline and misconduct include acceptingnonjudicial punishment under the provisions of Article 15 of the Uniform Code of MilitaryJustice on the following dates:

•14 January 2003, for striking a female in her face and throwing her to the ground

•6 March 2002, stealing two music compact discs from the post exchange

•16 May 2003, for failing to go to accountability formation, disobeying a lawfulorder from a noncommissioned officer (NCO) on two occasions



5.On 19 June 2003, the applicant’s commander notified the applicant of his intent toinitiate separation action under the provision of Army Regulation (AR) 635-200(Personnel Separations-Enlisted Personnel), paragraph 14-12c, commission of aserious offense. The commander cited the applicant’s theft from the post exchange, being drunk on duty, breaking restriction, driving under the influence on post, speeding on post, and disobeying an NCO. The applicant acknowledged receipt on the same day. 

6.On 20 June 2003, after consulting with counsel, the applicant voluntarily waivedconsideration by an administrative separation board, contingent on receiving acharacterization of service, or description of separation, no less favorable than underhonorable conditions (general). He elected to submit statements in his own behalf, apersonal appearance before a separation board, and representation by military counsel.The applicant submitted a written and a typed statement wherein he attributed hismisconduct to his mother being sick and getting in with the wrong crowd. He expressedhis desire to remain in the military and make use of his education benefits.

7.On 23 June 2003, the commander formally recommended the applicant bedischarged with a characterization of service of under honorable conditions (general).

8.The appropriate authority approved the recommended discharge on 8 July 2003 anddirected the applicant's service be characterized as under honorable conditions(general).

9.On 28 July 2003, he was discharge in accordance AR 635-200, paragraph 14-12c,by reason of misconduct. His DD Form 214 confirms he completed 1 year, 10 months,and 29 days of net active service and his service was characterized as under honorableconditions (general). His DD Form 214 does not reflect any personal decorations.

10.Soldiers may be separated under the provisions of Army Regulation 635-200,chapter 14 for misconduct. Action will be taken to separate a member for misconductwhen it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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


BOARD DISCUSSION: 

After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined that relief 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 frequency and nature of the misconduct and the reason for separation.  The Board found insufficient evidence of in-service mitigating factors to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, 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 

: XXX : XXX : XXX 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. 


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REFERENCES: 

1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within three years after discovery of thealleged error or injustice. This provision of law also allows the Army Board forCorrection of Military Records (ABCMR) to excuse an applicant's failure to timely filewithin the three-year statute of limitations if the ABCMR determines it would be in theinterest of justice to do so.

2.Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) setsforth the basic authority for the separation of enlisted personnel.

a.Chapter 14 establishes policy and prescribes procedures for separating membersfor misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence 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. 

b.It states that an honorable discharge is a separation with honor and entitles therecipient 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations. Clemencygenerally refers to relief specifically granted from a criminal sentence. Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum. However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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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