IN THE CASE OF:  BOARD DATE:  24 August 2020 DOCKET NUMBER:  AR20200002676 


APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions.   

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

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

.Letter, from the Department of Veterans Affairs (VA), dated 23 December 2019

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

.Discharge Orders 344-0144



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 (ABCMR) conducted a substantive review of this case and determinedit is in the interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he had medical issues and a contract change after his initialenlistment agreement and reenlistment.  He served honorably in the Regular Army (RA)from:

a.30 August 1989 through 26 April 1993, during this period of service he alsoserved in Germany from 20 December 1989 to 24 December 1990, Saudi Arabia from 25 December 1990 to 4 May 1991, and from 5 May 1991 to 4 April 1992 

b.27 April 1993 through 12 September 1994.

3.On 13 September 1994, while in Korea, he reenlisted in the RA for 3 years, andcontinental United States (CONUS) station of choice reenlistment option, Fort Sill, OK.On 30 March 1995, he was assigned to Fort Sill, with duties in military occupationalspecialty (MOS) 13M (Multiple Launch Rocket System Crewmember).  On 4 April 1997,he was promoted to staff sergeant.

4.On 3 July 1997, he left his unit at Fort Sill in an AWOL status.  On 2 August 1997, hewas dropped from Army rolls.  On 29 September 1997, he was returned to militarycontrol at the Personnel Control Facility, Fort Sill.

5.A Charge Sheet, dated 29 September 1997, shows he was charged with the aboveoffense.

6.On 2 October 1997, the applicant voluntarily requested discharge for the good of theservice in lieu of trial by court-martial under the provisions of chapter 10, ArmyRegulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He consultedwith legal counsel and was advised of the basis for the trial by court-martial, hisavailable rights and the basis for voluntarily requesting discharge under the provision ofAR 635-200, chapter 10.  He signed a request for discharge in lieu of trial by court-martial and he:

a.Declined to submit statements in his own behalf.

b.Declined a physical examination prior to separation.

c.Acknowledged he understood there was no automatic upgrading nor review byany government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished a review of his discharge.  Additionally, he acknowledged that he realize the act of consideration by either board did not imply that his discharge would be upgraded. 

7.On 24 November 1997, the applicant’s immediate commander recommendedapproval with an UOTHC discharge.

8.On 5 December 1997, the appropriate authority directed the applicant’s reduction tothe lowest enlisted grade, approved his request for discharge in lieu of trial by court-martial, and directed the issuance of an Under Other than Honorable ConditionsDischarge Certificate.

9.On 5 December 1997, the Chief Criminal Law Division, reviewed the applicant’srequest for discharge and found no objections for further processing.

10.On 19 December 1997, he was discharged accordingly.  His DD Form 214 showshe completed 8 years and 22 days of total active service.  The DD Form 214 lists hislost time as 3 July through 28 September 1997 (88 days).  His authorized awards arelisted as the Army Commendation Medal (3rd Award), Army Achievement Medal
(4th Award), Army Good Conduct Medal, National Defense Service Medal, KuwaitLiberation Medal (Kuwait), Kuwait Liberation Medal (Saudi Arabia), Southwest Asia

Service Medal with two bronze service stars, Southwest Asia Service Medal, Noncommissioned Officer’s Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon (2nd Award), Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars, and Driver and Mechanic Badge with Driver “W” Bar. 

11.AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial bycourt martial.  In doing so, he would have waived his opportunity to appear before acourt-martial and risk a felony conviction.  An UOTHC discharge is authorized andnormally considered appropriate; however, a member may be awarded an honorable orgeneral discharge, if during the current enlistment period of obligated service he hasbeen awarded a personal decoration or if warranted by the particular circumstances of aspecific case.

12.The applicant provides:

a.A VA letter showing he is being assisted by the VA's Veterans Justice OutreachProgram.  The applicant is in custody in a county jail.  He is homeless and has no permanent contact information.  The VA is trying to assist him in determining whether he might be enrolled in the VA Healthcare System to receive services, and to access services for which he may be eligible. 

b.Discharge Orders 344-0144, reassigning him to the U.S. Army Transition Pointfor transition processing with a discharge date of 19 December 1997.  

13.The applicant argues that he had medical issues and a contract change after hisinitial enlistment agreement and reenlistment.  The available service contains noevidence of medical issues or enlistment/reenlistment related issues.

14.He had service that was characterized as honorable from 30 August 1989 through26 April 1993 and from 27 April 1993 through 12 September 1994.  This honorableservice is addressed in the Administrative Notes portion of these proceeding.

15.While in Korea, on 13 September 1994, he reenlisted in the RA for 3 years, andCONUS station of choice reenlistment option, Fort Sill, OK.  On 30 March 1995, he wasassigned to Fort Sill, with duties in MOS 13M.  On 4 April 1997, he was promoted tostaff sergeant.  He left his unit at Fort Sill in an AWOL status from 3 July through
28 September 1997.  Upon return to military control he was discharged after completing8 years and 22 days of net active service this period.

16.In reaching its determination, the Board can consider the applicant's petition, hisclaims, and service record, in light of the published Department of Defense guidance onequity, injustice, or clemency.



BOARD DISCUSSION: 




After review of the application and all evidence, and in addition to the Administrative Notes (below the signature), the Board determined there is sufficient 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 grounds for clemency.  The applicant’s record reflects that he served honorably in wartime from 25 December 1990 to 4 May 1991.  He had a prior periods of honorable service and reenlisted twice.  The Board found that the totality of the applicant’s service and post-service circumstances warranted clemency.  Therefore,the Board found that the discharge characterization should be upgraded as a matter of clemency.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: 

In addition to the Administrative Notes (below the signature), 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 amending the applicant’s discharge characterization on his DD Form 214, ending 19 December 1997, to “General, Under Honorable Conditions.” 


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): 

1.AR 635-5 (Personnel Separations – Separation Documents) provides for Soldierswho have previously reenlisted without being issued a DD Form 214 and who are laterseparated with any characterization of service except “honorable,” enter, in Remarks,“CONTINUOUS HONORABLE ACTIVE SERVICE FROM” (first day of service which
a DD Form 214 was not issued) UNTIL (date before commencement of currentenlistment).  Then enter the specific periods of reenlistments as prescribed above.

2.As a result amend item 18 (Remarks) of his DD Form 214 by adding the followingentry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19890830 – 19930426and 19930427-19940912.”

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.AR 635-200, in effect at the time, set forth the basic authority for the administrativeseparation of enlisted personnel.

a.Chapter 10 stated a member who was charged with an offense or offenses forwhich the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an UOTHC discharge was normally issued to an individual who was discharged for the good of the service. 

     b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 
 
     c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
     d.  An UOTHC discharge is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct.  In a case in which an UOTHC discharge is authorized by regulation, 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.  
 
3.  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.   
 
     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, 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. 
 
//NOTHING FOLLOWS//