IN THE CASE OF:  BOARD DATE:  19 March 2020 DOCKET NUMBER:  AR20200000873 


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable or to general, under honorable conditions. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Certificate of Release or Discharge from Active Duty)



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states he believes his discharge was unjust because he was falselyaccused, arrested, convicted, and returned to the military after his conviction.

3.On 26 August 1987, the applicant enlisted in the Regular Army for a period of
4 years.  He completed the training requirements and he was awarded militaryoccupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic), and reported to hisfirst duty assignment in Germany on 3 March 1988.

4.A DA Form 2-1 (Personnel Qualification Record), dated 20 May 1989, shows while onordinary leave the applicant was apprehended by civilian authorities on 17 May 1989 inCleveland, OH, for drug trafficking. He was confined in Cuyahoga County Jail,Cleveland, pending a court appearance.  On 19 May 1989, he posted bond and wasreleased on the same date with a further court date of 28 August 1989.  Additionally,this document shows:

a.On 23 October1989, he was arrested in Cleveland for failure to appear, breakingand entering, robbery, and possession of criminal tools. 

b.On 4 October 1990, he appeared in court in Cleveland and pled guilty topossession of cocaine, and robbery and other charges were dismissed.  He was sentenced to serve 3 to 10 years (18 months to serve).  

c.On 10 January 1990, at age 24, he was transferred to the Ohio Reformatory toserve his sentence.  On 8 November 1991, he was released on parole and was returned to military control at the Special Processing Company, Personnel Confinement Facility, Fort Knox, KY. 

5.On 18 November 1991, he stated that he desired a physical evaluation prior toseparation.  The available evidence does not indicate whether or not he was evaluated.

6.A Charge Sheet, dated 22 November 1991, shows he was charged with beingAWOL from 20 May 1989 to 8 November 1991.

7.On 22 November 1991, the applicant voluntarily requested discharge for the good ofthe service in lieu of trial by court-martial under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for Goodof the Service).  He consulted with legal counsel and was advised of the basis for thetrial by court-martial, his available rights, and the basis for voluntarily requestingdischarge under the provisions of Army Regulation 635-200, chapter 10.  He signed arequest for discharge for the Good of the Service and indicated he would not submitstatements in his own behalf.

8.On 22 November 1991, he was placed on excess leave pending his discharge date.

9.On 26 November 1991, the applicant’s immediate and intermediate commandersrecommended approval of his request with an UOTHC discharge.

10.On 3 December 1991, the appropriate approval authority approved the applicant’srequest for discharge in lieu of court-martial and directed that he be furnished an UnderOther than Honorable Conditions Discharge Certificate.

11.On 16 January 1992, he was discharged accordingly; his DD Form 214 shows hecompleted 1 year, 11 months, and 3 days of net active service with lost time from
20 May 1989 through 25 August 1991 and from 26 August through 7 November 1991.He was awarded or authorized:  The National Defense Service Medal, Army ServiceRibbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge[Rifle] and Hand Grenade, and Marksmanship Qualification Badge .38 Caliber Pistol.

12.Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial.  In doing so, he would have waived his opportunity toappear before a court-martial and risk a felony conviction.  An UOTHC discharge is
authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 

13.Regarding the applicant’s contention that his discharge is unjust because he wasfalsely accused, arrested, convicted, and returned to the military after his conviction.The available evidence shows while on ordinary leave from Germany, he wasapprehended by civilian authorities for drug trafficking.  He posted bond and failed toappear to his court date.  He was later arrested in Cleveland for failure to appear,breaking and entering, robbery, and possession of criminal tools.

a.On 4 October 1990, he appeared in court in Cleveland and pled guilty topossession of cocaine, and robbery; the other charges were dismissed.  He was sentenced to serve 3 to 10 years.   

b.On 8 November 1991, he was released on parole and was returned to militarycontrol.  As such, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  On 16 January 1992, he was discharged under AR 535-200 with an UOTHC discharge.  He completed 1 year, 11 months, and 3 days of net active service with lost time from 20 May 1989 through 25 August 1991 and from 26 August through 7 November 1991.    

c.He pled guilty to the charges against him, which led to his discharge.  If hebelieved he was being falsely accused, it was his responsibility to address the issue and appeal the action if required. 

14.In reaching its determination, the Board can consider the applicant's petition, hisservice record, and his contentions in light of the published Department of Defenseguidance on equity, injustice, or clemency.

BOARD DISCUSSION: 

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the serious misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization.  The Board agreed that the applicant’s discharge characterization is appropriate. 


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. 


X CHAIRPERSON


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):  NA 

REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three years after discovery of the alleged error or injustice.This provision of law also allows the Army Board for Correction of Military Records(ABCMR) to excuse an applicant's failure to timely file within the three-year statute oflimitations 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 enlistedpersonnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

c.A Chapter 10 discharge is applicable to members who had committed an offenseor offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an UOTHC discharge was normally considered appropriate. 

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  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 maybe warranted based on equity or relief from injustice.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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, 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. 
 
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