ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160013392 APPLICANT REQUESTS: The applicant requests his general under honorable conditions discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge) in lieu of the DD Form 149 (Application for Correction of Military Records) * DD Form 214 (Certificate of Release or Discharge) * NGB Form 22 (Report of Separation of Record) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers: * AC95-08840 on 28 February 1996 * AR2001052824 (undated) * AR2001062812 on 02 January 2002 * AR20070007028 on 28 June 2007 * AR20110006705 on 01 July 2011 * AR20120015038 on 13 September 2012 * AR20130014711 on 29 October 2013 * AR20140015882 on 21 October 2014 3. The applicant states that he was on one day of active duty, on or about May 1993, after his discharge under other than honorable conditions. He request a review of his records to verify if the discharge was granted in a proper manner and in accordance with regulatory procedures. 4. The applicant entered the Army Reserve on 5 September 1989. He provided a DD 214 and two NGB Form 22s showing that he served honorable prior to his Chapter 10 discharge. 5. On 23 March 1992, he was charged with the violation of UCMJ Articles that read as the following: a. Violation of Article 108 between May 1989 and July 1991, without proper authority, sold to or dispose of trading various items of military clothing and military equipment, of a total value of about $14,589.00, military property of the United States. b. Violation of Article 121 between May 1989 and July 1991, steal various items of military clothing and military equipment, military property, of a total value of about $14,589.00, the property of the United States. c. Violation of Article 123 with the intent to defraud, falsely make in their entirety and utter certain writings and documents, to wit: DA Forms 3078 (personal Clothing Requests), in the following words and figures, to wit: requesting items of personal military clothing, uniforms, boots, and TA-50 equipment through the military Clothing Sales Store, and affixing the purported signature of various soldiers as requestors of said items of clothing and equipment, which said writings and document would, if genuine, apparently operate to the legal harm of another. 6. On 3 April 1992, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He consulted with legal counsel and was advised of the basis for the trial by court-martial and his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10.  He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. He signed a request for discharge for the Good of the Service and indicated he would not submit statements on his own behalf. 7. The appropriate authority approved the applicant’s request for the good of the service, directing the applicant be reduced to the lowest grade possible and that his service be characterized as UOTHC. 8. On 9 May 1992, the applicant was discharged accordingly. His DD Form 214 shows he completed 2 years and 8 months of total active service, and is authorized the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, National Defense Service Medal (2nd Award), and Expert, M-16 Rifle Badge. 9. Army Regulation 635-200 states a UOTHC when separated under Chapter 10 is authorized. 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. 10. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance 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 applicant’s contentions, previous considerations, and new information was carefully considered. Based upon the preponderance of evidence, the Board agreed the discharge characterization was warranted as a result of the misconduct, and there was no evidence he was not afforded rights during the process. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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 to amend the decision of the ABCMR set forth in the following Docket Numbers: * AC95-08840 on 28 February 1996 * AR2001052824 (undated) * AR2001062812 on 02 January 2002 * AR20070007028 on 28 June 2007 * AR20110006705 on 01 July 2011 * AR20120015038 on 13 September 2012 * AR20130014711 on 29 October 2013 * AR20140015882 on 21 October 2014 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): Not Applicable 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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 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, a discharge under other than honorable conditions 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 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 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. 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) AR20160013392 5 1