IN THE CASE OF: BOARD DATE: 25 April 2023 DOCKET NUMBER: AR20220010122 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 made a lot of mistakes early in life and he has come to regret them. He is hoping that time will heal any wounds he caused the Army. 3. The applicant enlisted in the Regular Army on 15 October 1986 for 4 years. He completed training with award of military occupational specialty 63R (Track Vehicle Repairer). The highest grade he held was E-3. 4. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 2 May 1988, for writing 36 checks totaling $1011.87 knowing he had insufficient funds for payment; punishment included reduction to E-2, and forfeiture of $300.00 per month for two months, $150.00 suspended until 2 November 1988 * 20 June 1988, for being absent without leave (AWOL) from on or about 12 May 1988 until on or about 29 May 1988; punishment included reduction to E-1 and forfeiture of $300.00 per month for two months, with $100.00 suspended until 19 December 1988 * 22 July 1988, for failure to go at the time prescribed to his appointed place of duty on 9 July 1988 * 25 July 1988, the suspended portion of his 2 May 1988 forfeiture was vacated due to absenting himself from his place of duty on 9 July 1988 * 23 November 1988, for with intent to deceive sign an official statement in reference to alleged theft of stereo equipment from his vehicle, known to be false on 11 November 1988; his punishment included forfeiture of $156.00 pay 5. The applicant received a General Counseling Form (undated) advising him that separation processing was being initiated for making a false official statement in writing on 11 November 1988. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 8 December 1988, shows the applicant had no abnormalities in behavior, level of orientation, mood, thinking process, thought content, or memory. He was determined to be mentally capable to understand and participate in the proceedings deemed appropriate by command. 7. The applicant's immediate commander notified the applicant, on 27 December 1988, of his intent to initiate actions to separate him under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14- 12c, for misconduct – commission of a serious offense. His commander noted the specific reasons as the false statement on 11 November 1988 and bad checks. 8. The applicant consulted with legal counsel on 28 December 1988. He was advised of the basis for the contemplated discharge, the possible effects of a general discharge, and the procedures and rights that were available to him. He indicated a personal statement would be submitted; however, no statement is of record. 9. The applicant's immediate commander formally recommended his separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c) and recommended he receive a general discharge. 10. The appropriate authority approved the discharge recommendation on 18 January 1989 and directed the applicant be issued a General Discharge Certificate. 11. The applicant was discharged on 23 January 1989, in the pay grade of E-1. 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, for misconduct – commission of a serious offense, and his service characterization was under honorable conditions (general). He was credited with 2 years, 2 months, and 14 days of net active service. He is shown to have had 25 days of lost time. 12. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was separated due to misconduct -commission of a serious offense, with a general discharge. The applicant provided no evidence of post-service achievements or letters of reference in support of 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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, 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 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.) AR20220010122 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1