IN THE CASE OF: BOARD DATE: 24 June 2021 DOCKET NUMBER: AR20210008647 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) * DD Form 149 (Application for Correction of Military Record) * Personal Statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 he was incarcerated in a civilian jail due to an altercation with his ex-wife. The board said that was the reason for the court-martial proceedings (Note. The record is void of any evidence of court-martial proceedings, but shows he had an administrative separation board). He had no other infractions occur during his time in the service. He was only 19 years old at the time and mentally, physically, and spiritually immature. He was thousands of miles away from family and friends. He did not know how to be a man let alone a husband. He had no one to guide him through life's ups and downs. This is no excuse for what happened. He is a better man today and a better grandfather because of life's experiences. 3. On 12 February 1986, the applicant enlisted in the Regular Army for a term of 3 years, at the age of 18 years old. 4. After completing his initial entry training, on 3 June 1986, he was assigned to Fort Ord, CA, in the military occupational specialty 11B (Infantry). 5. His record shows he was counseled on three occasions during the period 22 October 1987 and 1 June 1988 for, but not limited to being arrested by civilian authorities for spousal abuse; violating a no contact order with his wife; missing DRF (Division Ready Force) formation during an alert; and notification of his approved bar to reenlistment. 6. On 22 October 1987, the applicant was apprehended by the military police and released to the civilian authorities for assault (spousal abuse). His spouse was transported to the hospital and treated for injuries to her nose, neck, and wrist. Civilian court documents reveal Marina police units were dispatched to the applicant's residence on report of a domestic disturbance. When they arrived the applicant's spouse was hysterical and had a cut on her finger, her face was slightly bruised and swollen, and she had a one inch to two-inch laceration on the back of her neck. She stated she had been beaten by her husband and had been beaten by him on several occasions in the past. The applicant was advised of his rights, which he waived, and admitted to battering his wife. He was arrested for spousal abuse. a. By memorandum, dated 23 October 1987, the Family Advocacy Case Management Team (FACMT) notified the applicant's immediate commander that an assessment and investigation will be conducted and presented to the FACMT for determination. If found substantiated, a comprehensive treatment plan would be developed and forwarded to him. b. On 24 October 1987, the civilian authorities returned the applicant to military control. 7. On 24 November 1987, the applicant accepted nonjudicial punishment (NJP) for on 30 October 1987, failing to go at the time prescribed to his appointed place of duty, to wit: blue bayonet alert recall formation, and willfully disobeying a lawful command from his superior commissioned officer to not visit his wife. His punishment consisted of reduction to rank/grade of Private First Class/E-3 (suspended until 24 February 1988), 14 days’ extra duty, and 14 days’ restriction. 8. On 19 January 1988, the applicant was released from the hospital and placed on convalescent leave (administrative board proceedings, discussed below, reveal through testimony, the applicant was stabbed by his wife). On 25 January 1988, he returned to duty. 9. On 17 February 1988, he was confined by civil authorities. A military police report shows the applicant was arrested for spouse abuse and battery. Civilian court documents reveal the Marina police units were dispatched at the applicant's residence on report of a medical emergency. The applicant met the police at the door and led the officers to the bedroom. The applicant's spouse was lying on the bed in an unconscious state. Shortly thereafter, she came to but appeared to be in need of medical attention because she was dazed. The applicant initially claimed he did not know what happed to her but later admitted to punching his wife. He was arrested for spousal abuse. 10. The applicant was charged with two counts of spouse abuse. His case was initially charged as a felony but the charges were reduced to a misdemeanor. The applicant was found guilty of two counts of spouse abuse and sentenced to 120 days’ confinement and to pay restitution to his spouse. He was released early for good behavior. On 2 May 1988, civilian authorities returned him back to military control. 11. A military police report revealed on 22 May 1988, the applicant was cited for a domestic disturbance when he and his wife were involved in a verbal altercation. 12. On 23 May 1988: a. The applicant's immediate commander initiated a bar to reenlistment against him. The commander indicated he had a record of NJP, imposed on 24 November 1987. The commander stated the applicant was convicted on 24 March 1988 in Monterey County Municipal Court of two counts of assault on his spouse. He failed to cooperate with the Probation Department in his opportunity to avoid the criminal justice process by means of the Department's Diversion Program. He was sentenced to 120 days in Monterey County Jail. His actions in physically attacking his spouse and through his own negligence and neglect absenting himself from duty, strongly indicate to him that the applicant was not the caliber of Soldier who was fit to continue service in the U.S. Army. The applicant acknowledged receipt of the bar to reenlistment and elected not to submit a statement on his own behalf. On 27 May 1988, the bar to reenlistment was approved. b. On 23 May 1988, he accepted NJP for between 4 April 1988 and 4 May 1988, wrongfully using marijuana, a controlled substance. His punishment consisted of reduction to Private E-2, forfeiture of $175.00 pay (suspended until 23 August 1988), 14 days extra duty, and 14 days restriction. 13. On 12 July 1998, the immediate commander, notified the applicant of his intent to separate him, under Army Regulation (AR) 635-200 (Personnel Separations– Enlisted Personnel), Chapter 14, paragraph 14-5. The basis for his proposed action was the applicant received NJP for failing to report to his appointed place of duty and he was arrested and convicted of two counts of spousal abuse. If he were tried by court-martial, he could have received a punitive discharge. Additionally, he received NJP for wrongfully using marijuana. The commander recommended he receive a general discharge. a. The applicant acknowledged receipt of the notification; advised by his consulting counsel of the basis for the contemplated separation action; and requested consideration of his case by a board of officers, a personal appearance before the board, and representation by military counsel. He elected not to submit a statement in his own behalf. b. The intermediate commander (battalion commander) recommended approval of the separation, with a discharge under other than honorable conditions. He commented per phone conversation with the company commander (CO), the CO stated he recommended a general discharge because it was more expeditious. The senior intermediate commander recommended approval with a UOTHC discharge. c. On 19 July 1988, the applicant was notified he was to appear before a board of officers to determine if he should be discharged from the U.S. Army before his expiration term of service. d. On 3 August 1988, the board convened. The applicant presented two letters of commendation (available for review). The board determined the applicant was not desirable for further retention in the military service due to incidents of misconduct: failure to report to duty, civil convictions for spousal abuse, and use of marijuana. His rehabilitation was not deemed possible. The board recommended he be discharged under AR 635-200, paragraph 14-5 for misconduct, civil conviction for spousal abuse with a UOTHC (summary of proceedings, 11 pages, available for review). e. Memorandum for Record, dated 17 August 1988, shows the Chief, Administrative Law, contacted the office of the clerk of Monterey County Municipal Court and he was informed that the applicant did not file an appeal for his convictions of spousal abuse within the 30 days allotted under California law; therefore, the convictions were final. f. The case was reviewed by the installation Adjutant General and he recommended the separation authority approve the board's recommendations. On 17 August 1988, the separation authority approved the board's recommendations. On 19 August 1988, the appropriate separation authority officially approved the separation under AR 635-200, paragraph 14-5 and directed the applicant be issued a UOTHC and reduced immediately. The applicant was a Private E-2 at the time his discharge was approved. 14. On 31 August 1988, the applicant was discharged. His service was characterized as UOTHC. He completed 2 years, 4 months, and 5 days of his 3-year contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 76 days lost time (civilian confinement) and he was awarded the Army Service Ribbon and the Hand Grenade Expert Marksmanship Qualification Badge. The form also shows at item 25 (Separation Authority) he was discharged under AR 635- 200, Chapter 14, Section IV; however, at the time of his discharge, chapter 14, only extended to Section III, Conviction by Civil Court was under Chapter 14, Section II. 15. The applicant requests an upgrade. He states he was incarcerated in a civilian jail due to an altercation with his ex-wife. He had no other infractions occur during his time in the service. He was only 19 years old at the time and was mentally, physically, and spiritually immature. This is no excuse for what happened. He is a better man today and a better grandfather because of life's experiences. a. His record shows he enlisted at the age of 18 years old. He accepted two NJPs; he was barred from reenlistment; and he was convicted by civil court of two counts of spousal abuse (assault), which offenses resulted in him having 76 days lost time due to civilian confinement. He completed 2 years, 4 months, and 5 days, of his 3-year contractual obligation. b. AR 635-200, Section II (Conviction by Civil Court) states Soldiers who were initially convicted by a civil court or when action was taken tantamount to a finding of guilty were subject to discharge; the Soldier had to have been convicted of an offense for which a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial or the sentence by civil authorities included confinement for six months or more. An under other than honorable conditions was normally furnished to Soldiers discharged under this provision. c. According to the Manual for Courts-Martial, Article 128 (Assault), consummated by battery, punishment included a punitive discharge. 16. 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 and all supporting documents, the Board found that relief was not warranted. 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 of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. 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. 3. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XXX 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. 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 (Certificate of Release or Discharge from Active Duty) for the period ending 31 August 1988, contains inaccurate information. As a result, amend the DD Form 214, item 25 (Separation Authority) by deleting "Section IV" and adding "Section II. 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 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern misconduct, commission-of a serious offense, conviction by civil authorities, desertion, and absence without-leave. Section II (Conviction by Civil Court), states Soldiers who were initially convicted by a civil court or when action was taken tantamount to a finding of guilty, were subject to discharge. An under other than honorable conditions was normally furnished to Soldiers discharged under this provision unless the particular circumstances of the case warrant an honorable or general discharge. (1) The Soldier had to have been convicted of an offense for which a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial, or the sentence by civil authorities included confinement for six months or more. (2) A Soldier subject to discharge under this regulation will be considered and processed for discharge even though he or she has filed an appeal or has stated his or her intention to do so. However, execution of the approved discharge will be withheld until the Soldier has indicated in writing that he or she does not intend to appeal the conviction, or until the time in which an appeal may be made has expired, whichever is earlier; or if an appeal has been made, until final action has been taken. d. When a Soldier is to be separated with a discharge under other than honorable conditions, the separation authority will direct reduction to the lowest enlisted grade. 3. The Manual for Courts-Martial, in effect at the time, provided Article 128 (Assault), consummated by battery, punishment included a punitive discharge. 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. 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) AR20210008647 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1