ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 
IN THE CASE OF:  
BOARD DATE: 22 March 2021 DOCKET NUMBER: AR20200005125 
APPLICANT REQUESTS: The applicant requests the upgrade of his general discharge under honorable conditions to honorable. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 293 (Application for the Army Discharge Review Board (ADRB)) 

. 
self-authored email to Army Review Board Agency (ARBA), 2 December 2020 


FACTS: 
1. 
The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto).  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: 


a. 
He is requesting a change of separation/discharge, due to his very unique circumstances. He was married to his high school sweetheart after basic training and advanced individual training (AIT). 

b. 
When he was sent to Korea it was chosen as a place they could extend in, which he did, so they could be together longer.  He went first and had the Army ready to fund their apartment and car. 

c. 
His wife cheated on him. They decided to separate temporarily while she figured out if their marriage was what she wanted.  During the hard, stressful time, he made a mistake and cheated on his wife. He knows it was wrong and didn't just see it as wrong at the time of his application. He knew it was wrong at the time he had the affair. It was the biggest mistake of his life. 

d. 
A few months later, he and his wife decided she would visit him to see if they still had love for each other, and they did. The separation was just crazy for them both, but they got past it and she moved to Korea with him. 

e. 
Months later, the girl he had slept with saw him and his wife when they were out having dinner.  The girl lost her mind saying she would have the applicant destroyed. He and his wife had forgiven each other and had moved forward.  They even got pregnant after months of trying. 

f. 
His wife left about 6 weeks early and scheduled a time to induce as he and his wife were promised he would be able to be there for the birth of their child. 

g. 
The statement from the applicant ends there.  He did not provide a continuation page with the rest of his statement. 


3. In self-authored e-mail to ARBA, dated 2 December 2020, the applicant states: 
a. 
As he's sure ARBA is aware there were many veterans, such as himself, who were hurting.  He humbly begs the Board for any assistance he could get. 

b. 
Unlike the average Veteran, he had five kids.  He had a 19 year old from his first marriage and he missed her birth while he was serving overseas.  Now he is remarried and has three stepchildren, a newborn daughter, and his own daughter. 

c. 
They were all suffering badly as he could not work.  To top it off, his ex-wife couldn't work either and had no child support income. 

d. 
If the Board upgraded his discharge, he would use his full GI Bill benefits to enroll in online school full time.  Although he greatly appreciated what his Department of Veterans Affairs (VA) offered, he could not afford to go to school on the partial pay that vocational rehabilitation offered. 

e. 
He was sure ARBA received many e-mails like his and as there was not really a thing ARBA could do, he felt bad typing the email.  He didn't know what else to do. He wanted to do the right thing and needs one chance to make things right, one person who could reach and ear and help save his family. 


4. 
On 19 December 2008, the applicant, at the age of 19 years old, enlisted in the US Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 8 years.  On 6 January 2009, he was discharged from the USAR DEP and entered active duty for a period of 4 years and 20 weeks. 

5. 
The applicant received four Developmental Counseling Forms, which state on: 


a. 11 March 2011, his off post privileges were limited to his home of residence and place of duty during the duration of the Army Regulation 15-6 Investigation.  His leave and off post privileges were also revoked and he was confined to his home of residence, Camp Casey, and Camp Hovey. The second page of the counseling form was not available for the Board's review. 
b.  11 April 2011, a no contact orders effective 8 April 2011 for Ms. P , and Mrs. 
C 
. Contact was defined as any form of communication either verbal, electronic, in person, or by any other means.  Violation of the orders was a violation of the Uniform Code of Military Justice (UCMJ) and could result in court-martial charges. The second page of the counseling form was not available for the Board's review. 

c. 
21 June 2011, for committing adultery.  The commander's inquiry found he had committed adultery with two females.  His sexual relationship with the women resulted in the birth of a child by both women.  He was reminded of the no contact order he had with both of the females.  He was notified of the types of discharge he could receive he if he was involuntarily separated. The second page of the counseling form was not available for the Board's review. 

d. 
29 June 2011, for violating a direct order by contacting one of the women he had a sexual relationship with. The applicant's wife contacted her via Facebook on the applicant's behalf. He was told if that type of conduct continued action could be initiated to separate him from the Army.  The second page of the counseling form was not available for the Board's review. 


6. 
On 10 June 2011, a memorandum Subject:  AR 15-6 Investigation Findings and Recommendations on the applicant was published. The entire memorandum was not available for the Board's consideration; however, the investigating officer found the applicant committed adultery with two females, which resulted in both giving birth to a child from the applicant. 

7. 
On 8 July 2011, the applicant accepted nonjudicial punishment (NJP) for willfully disobeying a lawful order and for committing adultery with two females.  His punishment included reduction to Private/E-1 (PVT), forfeiture of $733.00 for two month and extra duty and restriction for 45 days.  The applicant appealed the punishment but did not submit additional matters.  The applicant's appeal was denied. 

8. 
On 3 August 2011, a Report of Mental Status Evaluation was completed on the applicant for separation under Army Regulation 635-200 (Personnel Separations ­Enlisted Personnel), chapter 14-12c. He was found to be fit for duty, including deployment. 

9. 
On or about 2 September 2011, the applicant received a medical evaluation and was found to be qualified for service. 

10. 
On 21 September 2011, the applicant was counseled by the Army Continuing Education System.  He stated he understood he was not receiving a fully honorable discharge and would not receive any VA educational benefits or refund of monies reduced from his pay for the Montgomery GI Bill. 

11. 
In an undated memorandum, the applicant's commander advised the applicant of his intent to separate him under paragraph 14-12c, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), based on the applicant violating a lawful order and committing adultery with two different women.  On 21 October 2011, the applicant acknowledged receipt of the initiation of separation. 

12. 
On 26 October 2011, after consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He stated he would waive consideration of his case by an administrative separation board if his characterization of discharge was general or honorable. He elected not submit a statement on his own behalf. 

13. 
The applicant's chain of command recommended approval of the discharge with an under honorable conditions (general) discharge and on 2 November 2011, the appropriate separation authority approved commander's separation recommendation and directed the applicant receive an under honorable conditions (general) discharge. 

14. 
On 16 November 2011, the applicant was discharged accordingly. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 10 months, and 11 days of net active service. He was awarded or authorized: 

• 
National Defense Service Medal 

• 
Global War on Terrorism Service Medal 

• 
Korean Defense Service Medal 

• 
Army Service Ribbon 

• 
Overseas Service Ribbon (2nd Award) 



15. 
On 23 August 2011, the applicant received a letter from the ADRB regarding his application requesting an upgraded discharge. The ADRB stated after careful review of his application, military records, and other available evidence, they determined he was properly and equitably discharged and denied his request. 

16. 
The applicant is requesting a change of separation/discharge due to his unique circumstance.  He and his wife were newly married when she cheated on him.  He also cheated on her. They forgave each other and continued their marriage in Korea. He knew cheating on her was wrong and it was the worse mistake he had ever made. 


a. 
During the applicant's era of service, commanders were to initiate separation action against Soldiers who had committed a serious military or civilian offense, and for which the UCMJ authorized a punitive discharge for the same or similar offense. The evidence of record shows the applicant disobeyed a lawful order and committed adultery. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial showed the maximum punishments for violating a lawful order and adultery both included a punitive discharge as part of their punishments. 

b. 
The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. 


BOARD DISCUSSION: 
1. 
After reviewing the application, evidence in the records all supporting documents, the Board found that relief was warranted. 

2. 
The Board carefully considered the applicant’s 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 and length of service, the nature of his misconduct and the reason for his separation.  The Board considered on documentation available for review and by a preponderance of evidence, determined there was sufficient evidence to grant relief as a matter of clemency. 


BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant’s 
DD Form 214 for the period ending 16 November 2011 to show his character of service as Honorable. 
X 
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, USC, 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 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provides: 


a. 
An honorable discharge was separation with honor.  Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty, or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to evaluate the extent thereof, as well as the seriousness of the offense.  An honorable discharge could be furnished when disqualifying entries in the Soldier's military record was outweighed by subsequent honest and faithful service over a greater period of time. It was the pattern of behavior, and not the isolated instance, which commanders should take into account as the governing factor. 

b. 
Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct.  Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who had committed a serious military or civilian offense, and for which the UCMJ authorized a punitive discharge for the same or similar offense. 


3. 
Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial shows the maximum punishment included a punitive discharge for violating a lawful order and adultery. 

4. 
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 on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony (to include that provided by an applicant), 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//