IN THE CASE OF: 

		BOARD DATE: 13 September 2023

		DOCKET NUMBER: AR20230002076


APPLICANT REQUESTS:  an upgrade of his general, under honorable conditions 
discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:  
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the 
United States).


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, that he has requested an upgrade of his 
characterization of service in the early 2000’s (ADRB), but it was not approved. 
Additionally, he says that he was told that he could not see a doctor at the VA or utilize 
Montgomery G.I. Bill benefits because he did not complete his entire enlistment.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 29 January 1998. He was trained in and 
awarded the military occupational specialty (MOS) of 92G, Food Service Specialist.

	b.  Orders 327-2220, dated 23 November 1999, discharged him from service with an 
effective date of 2 December 1999, unless changed or rescinded.

	c.  The applicant’s available record does not show any recorded actions under the 
Uniform Code of Military Justice (UCMJ), unauthorized absences, or time lost. However, 
he was separated as a Private (E-1) and the facts and circumstances leading to his 
discharge are not contained in the service record.

	d.  The applicant was discharged from active duty on 2 December 1999 with a 
general, under honorable conditions characterization of service. His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 10 
months, and 4 days of active service with no lost time. He was assigned separation 
code JKA and the narrative reason for separation listed as “Misconduct.” It also shows 
he was awarded or authorized the Army Service Ribbon.

	e.  On 23 May 2008, he enlisted in the Regular Army. He was trained in and 
awarded the military occupational specialty (MOS) of 88M, Motor Transport Operator.

	f.  His Enlisted Record Brief (ERB) indicates that he was in Kuwait from 24 February 
2008 to 24 May 2009. It also shows that he was assigned to a Warrior Transition Unit 
(WTU) from 16 July 2012 until he separated on 15 January 2014.

	g.  His DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) shows 
on 8 October 2013, the applicant was found unfit for duty, the board recommended a 
70%, and that his disposition be permanent disability retirement. Section V 
(Administrative Determinations) further noted:

*	the disability disposition is based on disease or injury incurred in the line of 
duty in combat with an enemy of the United States and as direct result of 
armed conflict or caused by an instrumentality of war and incurred in the line 
of duty during a period of war
*	the disability did result from a combat related injury as defined under the 
provision of 26 USC 104 or 10 USC 10216.

	h.  He was medically retired from active duty on 15 January 2014, with an honorable 
characterization of service. His DD Form 214 shows he completed 5 years, 7 months, 
and 23 days of active service with no lost time. Block 13 (Decorations, Medals, Badges, 
Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or 
authorized:

*	National Defense Service Medal
*	Global War on Terrorism Service Medal
*	Humanitarian Service Medal
*	Iraq Campaign Medal with Campaign Star
*	Army Service Ribbon
*	Overseas Service Ribbon
*	Driver and Mechanic Badge with Driver-Wheeled Vehicle(s) Clasp

4.  On 7 August 2013, the Army Discharge Review Board (ADRB) reviewed the 
applicant's discharge processing but found it proper and equitable. The ADRB denied 
his request for an upgrade of his discharge. 
5.  By regulation (AR 635-5), the DD Form 214 is a summary of the Soldier's most 
recent period of continuous active duty. It provides a brief, clear-cut record of all current 
active, prior active, and prior inactive duty service at the time of release from active 
duty, retirement, or discharge. The information entered thereon reflects the conditions 
as they existed at the time of separation. 

6.  By regulation, (AR 635-200), a member may be separated when it is due to 
misconduct because of minor disciplinary infractions, a pattern of misconduct, 
commission of a serious offense, conviction by civil authorities, desertion, and absence 
without leave. The service of members separated because of misconduct will be 
characterized as under other than honorable or general, under honorable conditions as 
warranted by their military record.

7.  In reaching its determination, the Board can consider the applicants petition and his 
service 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 mitigation to overcome the misconduct. The Board noted, the 
applicant provided no post service achievements or character letters of support to attest 
to his honorable conduct that might have mitigated the misconduct that resulted in the 
discharge characterization. 

2.  The applicant was discharge for misconduct and was provided an under honorable 
conditions (General) characterization of service. The applicant was credited with 1 year, 
10 months, and 4 days of active service with no lost time.   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, relief was denied.


?
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, 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 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct. The ABCMR is 
not an investigative body and decides cases based on the evidence that is presented in 
the military records provided and the independent evidence submitted with the 
application. The applicant has the burden of proving an error or injustice by a 
preponderance of the evidence.

3.  Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a 
summary of the Soldier's most recent period of continuous active duty. It provides a 
brief, clear-cut record of all current active, prior active, and prior inactive duty service at 
the time of release from active duty, retirement, or discharge. The information entered 
thereon reflects the conditions as they existed at the time of separation.

4.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  An honorable discharge is a separation with honor. The honorable 
characterization is appropriate when the quality of the member’s service generally has 
met the standards of the 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 member whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 of the regulation states a member may be separated when it is due to 
misconduct because of minor disciplinary infractions, a pattern of misconduct, 
commission of a serious offense, conviction by civil authorities, desertion, and absence 
without leave. The service of members separated because of misconduct will be 
characterized as under other than honorable or general, under honorable conditions as 
warranted by their military 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/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. 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 based on 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. 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)	AR20230002076


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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