IN THE CASE OF: BOARD DATE: 14 May 2021 DOCKET NUMBER: AR20210005744 APPLICANT REQUESTS: in effect, reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge. Specifically, he requests an upgrade of his character of service the under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 214 (Certificate of Release of Discharge from Active Duty) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110001250 on 28 July 2011. 2. The applicant completed honorable initial active duty training from 5 July to 7 November 1984 and honorable Regular Army (RA) service from 1 August 1985 to 22 February 1989. 3. On 23 February 1989, the applicant reenlisted in the RA for 3 years. He held military occupational specialty (MOS) 27F (Vulcan Repairer). The highest rank he achieved was sergeant/E-5. 4. All of the specific facts and circumstances surrounding his discharge processing are not available for review. a. A charge sheet, dated 1 August 1991, shows charges were preferred against him for: • Wrongful possession of cocaine on or between 25 May and 10 June 1991 • Wrongful use of cocaine on or between about 25 May and 10 June 1991 • His use was detected by biochemical testing of a urine sample he submitted to military authorities at Fort Hood, TX b. On 6 August 1991, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200 (Personnel Separations – Enlisted Personnel). He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10. He signed a request for discharge in lieu of trial by court-martial and declined to submit statements in his own behalf. c. On 6 August 1991, the Commander, 1st Cavalry Division, Fort Hood, TX, directed the applicant’s reduction to private/E-1, approved his request for discharge in lieu of trial by court-martial, and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate. The DD Form 214 shows his awards and decorations are listed as the Army Achievement Medal with 1 Oak Leaf Cluster, Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, Driver and Mechanic Badge (Driver W), and Sharpshooter Marksmanship Qualification Badge (Rifle). The DD Form 214 also shows in: • Character of Service, “Under Other than Honorable Conditions” • Separation Authority, AR 635-200, Chapter 10 • Separation Code, “KFS” • Reentry Code, “3” • Narrative Reason for Separation, “For the Good of the Service-In Lieu of Trial by Court-Martial” • Remarks, Continuous honorable active Federal service from 850801 - 890222 5. On 28 July 2011, the ABCMR denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 6. AR 635-200, Chapter 10, provides for a voluntary request for discharge in lieu of trial by court martial. A 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. 7. The separation program designator (SPD) of “KFS” and the reentry code of “3” on the DD Form 214 are based on the separation authority. Per the version of AR 635-5-1 (SPD) Codes in effect at the time of the applicant’s discharge, if the separation authority is AR 635-200, chapter 10, the required narrative reason for separation is “For the Good of the Service-In Lieu of Court-Martial.” 8. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable. They are ineligible for reentry unless a waiver is granted. 9. He contends he has relocated and he needs copies of his previous ABCMR ROP, the character references, and support documents that he previously provided. The applicant will be provided these documents. 10. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. 11. He completed honorable active service from 5 July to 7 November 1984 (4 months and 3 days) and from 1 August 1985 to 22 February 1989 (3 years, 6 months, and 21 days). He was discharged for wrongful possession and use of cocaine on or between 25 May and 10 June 1991. 12. He completed 6 years, 1 month, and 18 days of net active service this period. In reaching its determination, the Board can consider the applicant’s petition, his contentions, and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents (including supporting documents he provided with his previous application), 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, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. 2. The Board found the decision to bring court-martial charges against the applicant to be inequitable. The Board agreed that the charges against him would normally be addressed with non-judicial punishment under the provisions of Article 15, UCMJ. The Board further found that, at most, because the applicant was a noncommissioned officer, he would have been subject to discharge processing under the provisions of AR 635-200, chapter 14, due to his misconduct. The Board found that these factors and the evidence of post-service conduct and achievements the applicant provided in support of his previous application support clemency. Based on a preponderance of evidence, the Board determined the applicant's record should be corrected to show his service was characterized as under honorable conditions (general). Because his character of service was the basis for his reduction in rank, the Board further determined his DD Form 214 should be corrected to show his rank/grade as SGT/E-5. 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 18 September 1991 to show in: * Item 4a – SGT * Item 4b – E-5 * Item 12h – 90 08 01 * Item 24 – under honorable conditions (general) 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, 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 Army Board for Correction of Military Records (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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which 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. 4. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the USAR. Table 3-1 includes a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible unless a waiver is granted. 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. 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// ABCMR Record of Proceedings (cont) AR20210005744 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005744 6 ABCMR Record of Proceedings (cont) AR20210005744 5