IN THE CASE OF: 

		BOARD DATE: 17 May 2023

		DOCKET NUMBER: AR20230000115


APPLICANT REQUESTS:

*	an upgrade of his under honorable conditions (general) discharge to honorable
*	his rank restored from private first class/E-3 to specialist/E-4
*	an appearance before the Board via video or telephone

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Enlisted Record Brief (ERB), dated 27 April 2005
*	Orders 200-004, issued by Giessen Transition Center, dated 19 July 2005
*	DD Form 214 (Certificate of Release or Discharge from Active Duty) for the 
period ending 23 July 2005

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, in effect, he was court-martialed for being absent without leave 
(AWOL) during deployment. Upon return from emergency leave, he lost his wallet and 
was not able to leave the country due to his immigration status. All he needed was a 
letter from his commander stating he was in the Army and identifying his brigade. He 
provided his command emails and a letter from the U.S. Embassy stating such. He did 
not receive the letter from his command until three months later. He provided this 
information in his court-martial, but he did not get a fair trial. The lieutenant colonel 
calling the shots saw the strong evidence he provided, took his rank and gave him a 
general discharge because he had a personal problem with him. Had he gone AWOL 
during deployment, he would have gone to jail and been dishonorably discharged.

3.  Having had prior service in the Army National Guard [see Administrative Notes], the 
applicant enlisted in the Regular Army on 30 April 2002 for a 3-year period. He served 
in Military Occupational Specialty (MOS) 75B (Personnel Administrative Specialist). 

4.  A DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was 
initiated by his chain of command on 2 May 2004 for adverse action.

5.  He served in Iraq from 11 May 2003 through 2 May 2004.

6.  Two DA Forms 4187 (Personnel Action), show the following changes in the 
applicant's duty status:

*	Emergency Leave to AWOL on 2 May 2004
*	Dropped from the Rolls to Present for Duty on 3 August 2004

7.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against 
the applicant on 1 December 2004, for being AWOL from on or about 2 May 2004 
through on or about 3 August 2004.

8.  By summary court-martial on 15 December 2004, the applicant was found guilty of 
the charges preferred against him. His punishment included reduction in rank to private 
first class/E-3, forfeiture of one-third of one month's pay, and restriction for two months. 
The sentence was adjudged on 16 December 2004.

9.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 February 2005, 
shows the applicant was psychiatrically cleared to participate in any board proceedings 
deemed necessary by the command.

10.  A DD Form 2807-1 (Report of Medical History), dated 23 February 2005, and the 
corresponding DD Form 2808 (Report of Medical Examination), dated 25 February 
2005, show the applicant was found medically qualified for separation.

11.  On 14 March 2005, the applicant's immediate commander notified the applicant of 
his intent to initiate separation actions against him under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, 
by reason of commission of a serious offense. As the specific reason, his commander 
cited the applicant’s summary court-martial conviction on 15 December 2004.

12.  The applicant consulted with counsel and acknowledged receipt of the proposed 
separation notification memorandum on 22 March 2005. He was advised of the rights 
available to him. He requested consideration of his case by an administrative separation 
board, a personal appearance before the board, and the right to have a minority group 
member sit on the board. He elected not to submit a statement in his own behalf.
13.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of Army Regulation 635-200, Chapter 14, by reason of 
commission of a serious offense. The intermediate commanders concurred with the 
recommendation, further recommending the issuance of a DD Form 257A (General 
Discharge Certificate).

14.  The separation authority rescinded the appointment of an administrative separation 
board and approved the recommended separation action, on 7 July 2005, and directed 
the issuance of a General Discharge Certificate.

15.  Accordingly, the applicant was discharged on 23 July 2005. His DD Form 214 
confirms he was discharged under the provisions of Army Regulation 635-200, 
Chapter 14, for misconduct. He was credited with 2 years, 11 months, and 20 days of 
net active service, with lost time from 2 May 2004 to 3 August 2004. His service was 
characterized as under honorable conditions (general).

16.  The applicant provides a copy of his ERB, discharge orders, and the corresponding 
DD Form 214.

17.  Regulatory guidance provides when an individual is discharged under the 
provisions of Army Regulation 635-200, Chapter 14, the separation authority may direct 
a general discharge if such is merited by the Soldier's overall record. Characterization of 
service as honorable is not authorized unless the Soldier's record is otherwise so 
meritorious that any other characterization clearly would be inappropriate.

18.  The Board should consider the applicant's overall record in accordance with the 
published equity, injustice, or clemency determination guidance.


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 achievements or letters of 
support that attest to the applicant’s honorable conduct that might have mitigated the 
discharge characterization. 
2.  During deliberation, the Board determined the applicant’s service record exhibits 
numerous instances of misconduct during his enlistment period for 2 years, 11 months, 
and 20 days of net service. Additionally, the Board concluded there was insufficient 
evidence of an error or injustice which would warrant a change in the applicant’ rank. 
Furthermore, 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. Therefore, the Board denied relief.

2.  Prior to closing the case, the Board did note the analyst of record administrative 
notes below, and recommended the correction is completed to more accurately depict 
the military service of the applicant.

3.  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 equitable 
decision.  As a result, a personal appearance hearing is not necessary to serve the 
interest 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:

Except for the correction addressed in Administrative Note(s) below, the Board found 
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):

The applicant completed a period of initial active duty for training (IADT). He was 
awarded an MOS at the completion of training and returned to the control of the Army 
National Guard. Regulatory guidance provides that when a Reserve Component Soldier 
successfully completes IADT, the characterization of service is Honorable unless 
directed otherwise by the separation authority. Please reissue him a DD Form 214 for 
the period ending 30 March 2001, showing his character of service as Honorable.


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 15-185 (Army Board for Correction of Military Records), paragraph 
2-11 states applicants do not have the right to a hearing before the ABCMR. The 
Director of the ABCMR may grant a formal hearing whenever justice requires.

3.  Army Regulation 635-8 (Separation Processing and Documents) establishes the 
standardized policy for preparing and distributing the DD Form 214. The purpose of the 
separation document is to provide the individual with documentary evidence of his or 
her military service. The DD Form 214 is a summary of a Soldier's most recent period of 
continuous active duty. It provides a brief, clear-cut record of active duty service at the 
time of release from active duty, retirement, or discharge.

4.  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 (UOTHC) was 
normally considered appropriate. However, the separation authority could direct a 
general discharge if such was merited by the Soldier's overall record.

5.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NR) 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, 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)	AR20230000115


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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