IN THE CASE OF: BOARD DATE: 29 October 2020 DOCKET NUMBER: AR20200002204 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 17 December 2019, with self-authored statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), 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: a. He was having marital problems and was going to counseling when he received orders reassigning him to Germany. While in Germany; he worried, cried, and made a lot of phone calls trying to contact his wife and two year old son. He was not able to contact them. b. Consequently, he turned to alcohol, which led to off duty problems and his inability to perform his duties. He received driving under the influence (DUI) charges, lost his rank, and he was nearly sent to the stockade. c. He spoke to the Judge Advocate General’s (JAG) Office about getting out of the Army. They told him to get some good statements about his performance as a Soldier and recommended he request a Chapter 10. He did not know what a Chapter 10 was but he wanted out of the Army, so he could get back to his family. He feels his nine and half years of service were lost. 3. The applicant enlisted in the Regular Army on 29 January 1988. He was honorably discharged on 29 December 1991 for immediate reenlistment. He reenlisted in the Regular Army on 30 December 1991, and was promoted to the rank/grade of sergeant/E-5 on 1 March 1993. He was again honorably discharged on 26 May 1993 for immediate reenlistment. He reenlisted in the Regular Army on 27 May 1993, and was assigned to Germany from on or about 29 December 1993 through on or about 16 February 1995. 4. The applicant’s service contains the following documents: * Travel Authorization 10-027, issued by Headquarters III Corps and Fort Hood, Fort Hood, TX, on 20 October 1993, shows an "Authorization for Overseas Travel of Dependents At Government Expense" and living quarters was approved for the applicant to take his dependents to Germany on concurrent travel * DA Form 5121-R (Overseas Tour Elections Statement), dated 3 January 1994, shows the applicant elected to serve a 36-month "with dependents" 5. The applicant accepted non-judicial punishment (NJP) on 31 August 1994, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for physically controlling a passenger vehicle, with the alcohol concentration of .159 grams of alcohol per 100 milliliters of blood or greater as shown by chemical analysis, on or about 10 July 1994. He was reduced to the rank/grade of specialist four (SP4)/E-4. 6. The applicant’s commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) on 29 November 1994. The commander cited, as reasons for his action, the applicant's DUIs on 31 August 1994, 18 September 1994, and 9 October 1994, and a General Officer Letter of Reprimand on 5 October 1994 for a DUI in July 1994. The applicant did not elect to appeal the Bar to Reenlistment, which was approved on 13 December 1994. 7. Court-martial charges were preferred against the applicant on 19 December 1994 for violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was charged with the following offenses: * conspiracy to make a false official statement, on or about 9 September 1994 * two specifications of violating a general regulation, by wrongfully operating a motor vehicle while his USAREUR license was revoked, on or about 9 October 1994 and on or about 9 September 1994 * making a false official statement to the German Police, with the intent to deceive, on or about 9 September 1994 * two specifications of operating a passenger vehicle while drunk, on or about 9 October 1994 and on or about 9 September 1994 * being drunk and disorderly, which was to the prejudice of good order and discipline in the armed forces, on or about 9 September 1994 8. The applicant consulted with legal counsel on 4 January 1995. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offenses that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was further advised that there was no automatic upgrade nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the ABCMR if he wished for a review of his discharge. He realized that the act of consideration by either board did not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf. His election shows he intended to submit a statement; however, no statement is available for review. e. Counsel submitted an additional two page memorandum, recommending approval of the applicant’s request. 9. The applicant’s chain of command recommended approval of his discharge request, in lieu of trial by court-martial, with an UOTHC discharge. 10. The applicant underwent a separation and mental status evaluation on 2 February 1995. He noted he was in good health and was qualified for administrative separation. The relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had the mental capacity to understand and participate in board proceedings; was mentally responsible; and met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 11. The separation authority approved the applicant's request for discharge on 9 February 1995, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 12. The applicant was discharged on 16 February 1995, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 13. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 14. The Board should consider the applicant's request, and statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, his bar to reenlistment, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 2. The Board noted the applicant's non-violent offenses and also considered his statement regarding the effect on him of being separated from his family. The Board further noted his chain of command's high regard for his duty performance, as noted in his separation packet. The Board found this evidence sufficiently mitigating to support a favorable clemency determination in this case. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). 3. The Board concurs with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX 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 his DD Form 214 for the period ending 16 February 1995 to show his service was characterized as under honorable conditions (general), to show he held the rank/grade of specialist/E-4, and to make the correction described in Administrative Note(s) below. 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): A review of the applicant's record shows his DD Form 214, for the period ending 16 February 1995, is missing important entries that affect his eligibility for post-service benefits. As a result, amend Item 18 (Remarks) of the DD Form 214 by adding the entry "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 880129 UNTIL 930526." REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records must be filed within three 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 three-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. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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) AR20200002204 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200002204 6 ABCMR Record of Proceedings (cont) AR20200002204 5