ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:         17 April 2019 

	DOCKET NUMBER:  AR20170000766


APPLICANT REQUESTS:  Upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge and restoration of his rank/grade to sergeant (SGT)/E-5.

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)
* a self-authored statement
* three Letters of Appreciation, dated between 30 October 1984 and 30 January 1988
* eight Character Reference Letters, dated between 30 March 1990 and 13 March 2013
* supervisor’s comments, undated

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 one of the best supply sergeants during his time.  He went to Germany as an E-4 and took over the supply room.  He was later promoted to E-5 and went to Fort Carson as the supply sergeant as well.  During his time there, an associate told him he could have a hole in the bumper of his car repaired. He was told all he had to do was give this guy some c-rations.  He reminded the guy that he could not do that because it was illegal.  However, he did tell him that he had 15 c-rations at home that he hadn’t used.  He is sure the associate knew the police and told them he was going to be at the place.  He was taken by the military authorities; they searched his house and found nothing.  He asked if he could speak with his first sergeant and commander but they wouldn’t let him.  This was during a time when they were putting people out for any reason at all.

3.  The applicant enlisted in the Regular Army on 22 September 1982.  He reenlisted on 1 November 1984 and again on 17 March 1988.

4.  The applicant was promoted to SGT/E-5 on 5 October 1987.

5.  The applicant's separation packet is not available for review in this case.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 27 April 1990, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of court-martial.  His rank/grade is shown as private/E-1.

6.  The issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no evidence that would indicate the contrary.

7.  The applicant provides numerous letters of appreciation and third-party letters of support, all of which attest to his professional abilities prior to and following the incident that resulted in his discharge from service.

8.  The Board should consider the applicant's provided evidence and self-authored statement 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 liberation consideration when reviewing discharge upgrades, the Board determined that partial relief was warranted.  Based upon the prior honorable service of the applicant, the passage of time and the recent guidance on discharge upgrade consideration, the Board concluded that upgrading the characterization of service of the applicant to Under Honorable Conditions (General) was appropriate.  

However, the Board found insufficient justification or reason to show that restoaration of the rank of the applicant was appropriate.  Based upon the circumstances in the case, the Board found that the reduction was warranted and appropriate and that no injustice or error occurred which would warrant restoration of rank.  For that reason, the Board recommended partial relief of the applicant’s request for relief.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	X	X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his characterization of service to Under Honorable Conditions (General).
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to restoring his rank to Sergeant/E5.
3.  Prior to closing the case, the Board noted the administrative note below by the analyst of record and recommended that change be made as well to more accurately depict the military service of the applicant.
	 
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, for the period ending 
27 April 1990, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks):

* SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
* CONTINUOUS HONORABLE ACTIVE SERVICE FROM 820922 UNTIL 880316


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, established promotion policies relating to the advancement, promotion, appointment, and reduction of all enlisted personnel on active duty.  Section XII of this regulation stated that an individual could be reduced for misconduct by an operation of law.

3.  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.

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a states 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 states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge was normally considered appropriate.

5.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  Boards for Correction of Military/Naval Records 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)	 AR20170000766


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