ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 June 2019 DOCKET NUMBER: AR20160015831 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20040003293 on 14 April 2005. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) * Orders 207-76, dated 7 October 1980 * Permanent Orders 19-29, dated 10 April 1981 * Fort Benning (FB) Form 72 (Certificate of Achievement), dated 1 August 1981 * DA Form 2442 (Certificate of Achievement), dated 13 November 1981 * DA Form 87 (Certificate of Training), dated 21-25 June 1982 * Certificate of Training, dated 1982 * Certificate of Completion, dated 21 June 1983 * Orders Number 121-36, dated 22 June 1983 * ABCMR Docket Number AR20040003293, dated 14 April 2005 * self-authored memo, dated 26 August 2016 * third party reference memo, dated 3 September 2016 * third party reference memo, undated FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20040003293 on 14 April 2005. 2. The applicant provides a new argument and new evidence with his application to the Board, in the form of a self-authored memo, certificates of achievements, promotion orders, Army Good Conduct Medal orders, and two third-party letters. These statements and the addition provided evidence were not initially considered and now warrant consideration by this Board. 3. The applicant states, he was told if nothing else happens, his discharge characterization would be automatically changed to honorable. He has been out of the Army for several years now and nothing has changed. He feels he deserves his benefits. He also states: * he would like to talk about the good he's done, while he was in the Army and since he was discharged from the Army * he was not a bad Soldier * when he went into the military he went in with a very dark secret; at the age of nine his father was killed and died in his arms * his first enlistment was good, he did his job, he did what was asked of him, and sometimes even beyond * he loved being in the Army, he felt he was going to do very well * during his second term he was sent to Korea; there, he saw many people killed * after a while, the stuff he felt didn't bother him but the stuff he buried deep down actually bothered him * he started doing things that he didn't understand; when asked why, he couldn't explain * he messed up and the military put him out, and yes, he was discharged with a UOTHC and for years he had to live with that, knowing that it not only hurt him, it hurt his family as well * he loves his wife and holds her dear; she didn't discharge him, she didn’t dismiss him or turn her back on him * being older and realizing his mistakes, he is returning to the Board and asking the Board to upgrade his UOTHC discharge to an honorable discharge 4. The applicant enlisted in the Regular Army on 28 March 1978. He completed his initial entry training and was awarded military occupational specialty (MOS) 36K (Tactical Wire Operation Specialist). 5. The applicant reenlisted in the Regular Army on 9 October 1980. He was awarded the Army Good Conduct Medal (1st Award) on 10 April 1981. He was awarded certificates of achievement on 1 August 1981 and 13 November 1981. 6. The applicant received several certificates of training and certificates of completion dating between 21 June 1982 and 21 June 1983. 7. The applicant was promoted to the rank of sergeant on 22 June 1983. 8. Court-martial charges were preferred against the applicant on 28 August 1985, for unlawful entry into a barracks room with intent to commit larceny, on or about 29 June 1984; theft, on or about 29 June 1984; and conspiracy to commit larceny, on or about 27 June 1984. 9. Following advice of counsel, the applicant entered into a pretrial offer and agreement; specifically, he offered to make a written stipulation of facts as to the circumstances of the offense to which he offered to plead guilty. 10. A memo of concern was submitted in the applicant's behalf. This memo points out that he played a major part in the investigation and arrest of other individuals involved in drug operations, a burglary ring, and a car bombing. 11. Additional court-martial charges were preferred on 7 October 1985, for wrongful use of a controlled substance, on or about 18 February 1985. 12. The applicant consulted with legal counsel on or about 19 February 1986 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he acknowledged: a. He understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. b. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. c. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He was advised he could submit any statements he desired in his own behalf. The Soldier elected to make a statement on his behalf. In a written statement, dated 5 March 1986, the Soldier states: * he request that the governing authorities grant him a discharge and that they issue him a general discharge certificate based upon his recent efforts as a Registered Source * as a Registered Source for the Fort Stewart Drug Suppression Team (DST), he provided information on major illegal drug distributors and introduced three illegal drug distributors to the DST agents who completed transactions. * he worked as a source to show his Commander that he could be rehabilitated * he would like to be relocated for the safety of his family due to the threat on himself and his family's life 13. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and directed he be reduced to the lowest enlisted grade and discharged UOTHC. 14. The applicant was discharged on 3 March 1986. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, and his service was characterized as UOTHC. 15. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 16. Army Regulation 635-200 provides the authority for separation of enlisted personnel upon expiration of term of service; the authority and general provisions governing the separation of enlisted personnel prior to expiration of term of service; and the criteria governing the issuance of Honorable, General, and UOTHC Discharge Certificates. 17. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 in-service mitigating factors for the misconduct that led to his separation and the applicant provided no evidence of post-service achievements or letters of reference in support of 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. The Board concurs with the correction stated in the Administrative Note(s) below. 2, After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X :X :X Deny BOARD DETERMINATION/RECOMMENDATION: With the exception of the correction stated in the Administrative Note(s) that follow, 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 decision of the ABCMR set forth in Docket Number AR20040003293, dated 14 April 2005. 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 25 May 1990, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214, for the period ending 25 May 1990, by adding the following entries to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 780328 UNTIL 801008 REFERENCES: 1. Title 10, U.S. Code, 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 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. a. Paragraph 1-4b(5) of the regulation in effect at the time stated that a DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Paragraph 2-4h(18) of the regulation currently in effect states that item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service. Subparagraph (c) states that for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. c. Since 1 October 1979, military personnel discharged for the purpose of immediate reenlistment are no longer issued a separate DD Form 214. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 4. The Secretary of Defense provided clarifying guidance to Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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. ABCMR Record of Proceedings (cont) AR20160015831