IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20220002583 APPLICANT’S REQUEST: Upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate or Release or Discharge from Active Duty) 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 requests relief to acquire benefits because he received an unfair character of service. 3. The applicant's service records show: a. On 30 March 1994, the applicant enlisted in the Regular Army for a period of 3 years. Upon completion of training, he was awarded military occupational specialty (MOS) 11B (Infantryman) and reported to his first unit of assignment. He successfully completed the Standard Air Assault Course on 11 May 1994. b. On 7 May 1995, the applicant’s unit reported him as absent without leave (AWOL). His personnel qualification record indicates he was AWOL through 18 June 1995. c. On 18 August 1995, the applicant was psychiatrically cleared for administrative action deemed appropriate by command. d. On 22 August 1995, the applicant accepted NJP under Article 15, of the UCMJ for being AWOL from on or about 7 May 1995 to 11 May 1995, he received the following punishment: * reduction in rank to Private (PVT)/E-1 * forfeiture of $427 for two months * extra duty for 45 days e. On 30 October 1995, the commander notified the applicant he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph, Chapter 14, paragraph 14-12b (Pattern of Misconduct) and recommended the applicant be separated prior to expiration of his term of service and that he receive a general, under honorable conditions discharge. The applicant signed the separation notification, acknowledging receipt. (1) On 14 November 1995, the applicant consulted with counsel and acknowledged that he was advised of the basis for his contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. He elected not to submit statements in his own behalf. (2) On 17 November 1995, the applicant’s intermediate commander recommended separation with a general, under honorable conditions discharge. (3) Subsequently the separation authority approved the recommended separation under the provisions of Army Regulation 635-200, Chapter 14-12b, by reason of pattern of misconduct. He directed the issuance of an under honorable conditions (general) discharge. f. On 5 December 1995, the applicant was discharged with an under honorable conditions (general) discharge. His DD Form 214 shows he completed 1 year, 6 months, and 23 days of active service this period. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Expert Badge (Hand Grenade), Sharpshooter Badge (M-16 Rifle), and the Air Assault Badge. 4. 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. a. Army Regulation 635-200, Chapter 14, provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under this chapter. b. 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: The Board carefully considered the applicants 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 on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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. 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. 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, paragraph 14-12b provides for the separation of Soldiers when they have a pattern of misconduct involving acts of discreditable involvement with civil or military authorities and conduct which is prejudicial to good order and discipline. The issuance of a discharge under other than honorable conditions is normally considered appropriate for separations under the provisions of this chapter. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 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, 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. 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) AR20220002583 1 ABCMR Record of Proceedings (cont) AR20220002583 1