IN THE CASE OF: 

		BOARD DATE: 8 February 2023

		DOCKET NUMBER: AR20220007329


APPLICANT REQUESTS: upgrade of his under honorable conditions (general) 
discharge, and a different narrative reason for separation.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 293 (Application for the Review of Discharge)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, 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 is trying to apply for a home loan. 

3.  The applicant enlisted in the Regular Army on 26 February 2001, for 3 years. His 
military occupational specialty was 19K (Armor Crewman).

4.  The applicant was reported as absent without leave (AWOL) on 2 September 2002 
and dropped from the rolls of his unit on 5 October 2002. 

5.  Court martial charges were preferred against the applicant on 5 October 2002 for 
violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged with being AWOL from on or about 4 September 2002 
and remained so absent in desertion.

6.  A Commander’s Report of Inquiry/Unauthorized Absence, dated 5 October 2002 
shows the possible contributing factors causing the applicant’s AWOL were marital 
strife, indebtedness, trouble with superiors, and an inability to adjust to military life. 

7.  A Report of Return of Absentee shows the applicant surrendered to military 
authorities on 20 January 2003.

8.  The applicant's immediate commander notified the applicant on 22 April 2003, of his 
intent to initiate separation actions against him under the provisions of Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by 
reason of misconduct - commission of a serious offense. The reason was AWOL from 
4 September 2002 to 21 January 2003.

9.  The applicant acknowledged receipt of the proposed separation notification 
memorandum on 22 April 2003 and was advised of the rights available to him. He 
waived his right to consult with counsel and to appear before an administrative 
separation board. He elected not to submit a statement in his own behalf.

10.  The applicant's commander formally recommended the applicant's separation from 
service under the provisions of Army Regulation 635-200, Chapter 14, and 
recommended he be issued a General Discharge Certificate. The applicant’s chain of 
command concurred with the recommendation. 

11.  The separation authority approved the recommended discharge on 25 April 2003 
and directed the issuance of a General Discharge Certificate.

12.  The applicant was discharged on 7 May 2003. 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 14-12c, his narrative reason for separation was 
misconduct. His characterization of service was under honorable conditions (general). 
He completed 1 year, 9 months, and 23 days of net active service. He lost time from 
4 September 2002 to 4 October 2002 and from 5 October 2002 to 20 January 2003.

13.  In reference to the applicant's desire to apply for a home loan, decisions of the 
Veterans Administration are solely within the jurisdiction of that agency. While the 
ABCMR can correct errors in an individual's military records it has no authority to direct 
or influence decisions by other agencies.

14.  By regulation, Soldiers are subject to separation under the provisions Army 
Regulation 635-200, Chapter 14, for commission of a serious offense. 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 
such is merited by the Soldier's overall record.

15.  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.

BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, 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 to overcome the misconduct. The Board noted, 
the applicant provided insufficient evidence of post-service honorable conduct that 
might have mitigated the discharge characterization. The Board determined the 
applicant’s service record exhibits numerous instances of misconduct during his 
enlistment period for 1 year, 9 months, and 23 days of net service.

2.  The Board noted, the applicant was discharged for misconduct and was provided an 
under honorable conditions (General) characterization of service.  The Board agreed 
that the applicant's discharge characterization is warranted as he did not meet the 
standards of acceptable conduct and performance of duty for Army personnel to receive 
an Honorable discharge. The Board determined under liberal consideration changes to 
the applicant’s narrative reason are not warranted Therefore, the Board denied relief.


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.


ADMINISTRATIVE NOTE(S): Not Applicable


REFERENCES:

1.  Title 10, U.S. Code, 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. The version in effect at the time provided that:

	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.  Chapter 14 established policy and prescribed procedures for separating 
members for misconduct. Specific categories included minor disciplinary infractions, a 
pattern of misconduct, commission of a serious offense, conviction by civil authorities, 
desertion, or absences without leave. Action would be taken to separate a member for 
misconduct when it was clearly established that rehabilitation was impracticable or was 
unlikely to succeed. A discharge under other than honorable conditions was normally 
considered appropriate. However, the separation authority could direct a general 
discharge if merited by the Soldier's overall record.

3.  Army Regulation 635-5 (Personnel Separations-Separation Documents) prescribed 
the separation documents prepared for Soldiers upon retirement, discharge, or release 
from active military service or control of the Army. It established the standardized policy 
for the preparation of the DD Form 214. The DD Form 214 is a synopsis of the Soldier's 
most recent period of continuous active service.

4.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to 
Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, 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 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)	AR20220007329


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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