ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 July 2019

	DOCKET NUMBER:  AR20160015506


APPLICANT REQUESTS: 

* upgrade of under other than honorable conditions discharge to an honorable discharge
* change reason for separation

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 that he is requesting to have his under other than honorable conditions discharge upgraded to an honorable discharge for several reasons:

	a.  During the time the accusations were made against, the applicant advised that his legal counsel did not provide him the information regarding his request for discharge.  His legal counsel did not advise him that if he accepted a discharge in lieu of a court-martial, it would mean that he was admitting that he was guilty of the charges.

	b.  There was no evidence that was provided to the applicant by his legal counsel.  His legal counsel only told him was if he was found guilty of the charges whether or not he was guilty, he could serve a minimum of 14 years in confinement.  

	c.  He was a social pariah at the time of the incident and no one would explain the procedures to him in layman terms, so he could clearly understand the hardships that he and his family would endure due to his discharge such as health and educational benefits.  Due to the poor explanation provided by legal counsel and his chain of command refusing to look at his case objectively, he was processed out of the military without any compensation exam or assistance.  

	d.  The applicant was innocent of the charges, but his roommate was the actual guilty party.  Because of his roommate’s friendship and privileges with the command element with weekend parties and drinking together, he was allowed to return to the U.S. and receive an honorable discharge even though the evidence clearly showed he was the guilty party.  This left the applicant to face the punishment of a command who wanted to make an example of someone to ensure the relationship with the local country was not affected.  

     e.  He is asking that the Board review his discharge.  He is sure if the systems that are in place today were available when he was discharged there would have been a different outcome.  He is currently a law abiding citizen, who still has a desire to serve.  No one wants to take a chance on a combat Soldier with 16 years of service because his discharge was based only on part of the facts due to prejudice because of the color of his skin.

3.  A review of the applicant’s service records shows:

	a.  He enlisted in the U.S. Army Reserve (USAR) on 23 August 1984.

	b.  Order number 59-1 dated 17 June 1985, the applicant was discharged from the USAR (Delayed Entry) under the provisions of Army Regulation (AR) 135-178 (Army National Guard (ARNG) and Army Reserve – Separation of Enlisted Personal).

	c.  He enlisted in the ARNG on 3 April 1986.

	d.  He was discharge from the California ARNG on 22 February 1987 with an honorable characterization of service under the provisions of paragraph 7-9a, National Guard Regulation (NGR) 600-200 for enlistment in another component of the Armed Forces.

	e.  He enlisted in the Regular Army (RA) on 31 March 1987.

   f.  His record is absent evidence of misconduct until 20 April 2001, while stationed in the Republic of Korea, a DA Form 458 (Charge Sheet) shows charges were preferred against the applicant for seven specifications of violating a lawful general regulation, wrongfully exceeding the U.S. Forces Korea Regulation 60-1, paragraph 4-4 (Commissary Ration Policy Monthly Dollar Limit) in the total amount of $2,850.
   
   g.  On 20 April 2001, his unit commander initiated court-martial proceedings, recommending a general court-martial. 
   
   h.  On 20 April 2001, his battalion commander recommended that general court-martial.
   
   i.  After consulting with legal counsel on 25 April 2001, the applicant requested discharge under provisions of chapter 10 (Discharge in lieu of trail by court-martial), 
AR 635-200 (Personnel Separations – Enlisted Personnel).   He acknowledged:

* he understood that the punishment for the charges against him could be a bad conduct discharge
* he made the request for discharge of his own free will
* he was not subject to coercion whatsoever by any person
* he was advised of the implications attached to the discharge
* he acknowledged that he understood the elements of the offenses(s) and that he was guilty of the offenses(s)
* he did not desire rehabilitation or further military service
* he was afforded the opportunity to consult with legal counsel
* he was advised of his rights under the Uniform Code of Military Justice (UCMJ)
* he understood that if the discharge request was accepted he could be discharged with an under other than honorable characterization of service
* he may be deprived of many or all Army benefits
* he may be ineligible for may or all benefits administered by the Veterans Administration
* he may be deprived of rights and benefits as a veteran under both Federal and States law
* he may encounter prejudices in civilian life
* he understood the discharge is not automatically upgraded
* he understood that he may apply to the Army Discharge Review Board or the Army Board for Corrections of Military Records to request the discharge be upgraded
* he understood that the act of considerations by either board does not imply it will be upgraded
* he understood that he may withdraw his request for discharge at any time up to separation
* he may submit statements in his own behalf

   j.  His unit commander recommended approval of the discharge request and that he be furnished a general under honorable conditions discharge certificate.

	k.  On 1 May 2001, his battalion commander recommended approval of the discharge request and that he be furnished an under other than honorable conditions discharge certificate (chain of command sequence).
	
   l.  On 2 May 2001, his brigade commander recommended approval of the discharge request and that he be furnished a general under honorable conditions discharge certificate.

	m.  On 7 May 2001, the separation authority approved the applicant’s request for discharge under the provisions chapter 10, AR 635-200, be furnished an under other than honorable conditions discharge certificate, be reduced to the lowest enlisted grade private (PVT)/E-1.

	n.  On 8 May 2001, the applicant was provided his discharge approval documents.

	t.  He was discharged from active duty on 23 May 2001 with an under other than honorable characterization of service under provisions of chapter 10, AR 635-200.  His DD Form 214 shows that he completed 14 years, 1 month, and 23 days of active service.  

4.  According to records available, the applicant did not have a permanent profile for physical limitations at the time of discharge.

5.  The applicant applied to the Army Discharge Review Board and on 9 June 2010, his application for an upgrade of his discharge was denied.

6.  In the processing of this case, a medical advisory opinion, dated 25 April 2019, was received from the Army Review Boards Agency Medical Advisor.  The advisory official found that a review of the applicant’s electronic medical records (AHLTA) that there were no records, electronic VA medical record (JLV) and the applicant’s military records.  Based on the information available for review at this time, the applicant did not have mitigating medical or behavioral health conditions for the offenses, which led to his separation from the Army.

7.  The applicant was provided the opportunity to rebut the advisory opinion on 1 May 2019; however, he did not respond.

8.  By regulation 635-200 (Personnel Separations – Enlisted Personnel) states a Soldier who had committed an offense or offenses, the punishment for which under the UCMJ and the manual for court-martial (MCM) includes a bad conduct or dishonorable discharge may submit a request for discharge in lieu of trial by court-martial.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required after referral until final action by the court-martial convening authority.  A Soldier who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge in lieu of trial by court-martial.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharge in lieu of trial by court-martial.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.
9.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted.  Based upon the medical advisory finding no mitigating medical or behavioral health conditions for the offenses which led to his separation, a lack of character evidence submitted by the applicant and an appearance of a lack of accepting responsibility for the misconduct on behalf of the applicant, the Board concluded that the characterization of service and narrative reason for separation received at the time of discharge was appropriate.

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 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.


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 (AR) 635-200 (Personnel Separation – Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 (Discharge in Lieu of Trial by Court-martial), states a Soldier who had committed an offense or offenses, the punishment for which under the UCMJ and the manual for court-martial (MCM) includes a bad conduct or dishonorable discharge may submit a request for discharge in lieu of trial by court-martial.  The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required after referral until final action by the court-martial convening authority.  A Soldier who is under a suspended sentence of a punitive discharge may likewise submit a request for discharge in lieu of trial by court-martial.  A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharge in lieu of trial by court-martial.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.
   
   b.  Paragraph 3-7a (Honorable Discharge), states an honorable discharge is 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  Paragraph 3-7b (General Discharge), states a general discharge is a separation from the Army under honorable conditions.  When authorized it is issued to a Soldier whose military records is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.  It will not be issued to Soldier solely upon separation at expiration of their period of enlistment.

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.  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 based on 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.  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.

ABCMR Record of Proceedings (cont)	 AR20160015506


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