ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20170009609 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 would like an upgrade of his under other than honorable conditions discharge to honorable. He is requesting this upgrade due to receiving other than honorable conditions discharge in 2005. His judge advocate general (JAG) appointed officer got everything on his record dismissed and he has not been in trouble since. He is also contemplating returning to duty. 3. A review of the applicant’s service record show: a. He enlisted in the Regular Army (RA) on 12 August 1997. b. On 28 June 2001, he was convicted by a general court-martial for wrongfully having sexual intercourse with a woman not his wife and for false swearing. The court sentenced him to reduction to private/E-1 and to be discharged from the service with a bad conduct discharge. The sentence would be later approved by the convening authority on 19 November 2002. c. Court Marital charges were preferred on 10 December 2001. His DD Form 458 (Charge Sheet) indicates that he was charged with one specification of being absent without leave from 21 May 2001 with the return date left blank by the immediate commander. d. On 22 July 2002, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him/her. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged: * he was making this request of his/her own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he/she was admitting guilt to the charges against him/her or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he acknowledged he understood if his discharge request were approved, he could be deprived of many or all Army benefits * he acknowledged he could be ineligible for many or all benefits administered by the VA and he/she could be deprived of his rights and benefits as a veteran under both Federal and State laws * he stated that under no circumstances did he desire further rehabilitation or to perform further military service * he elected not to submit a statement on his own behalf e. On 30 July 2002, the applicant’s JAG counsel sent an email to his intermediate commander requesting that documents pertaining to the applicant’s request for discharge be sent to the Staff Judge Advocate and the commanding general due to the applicant’s state of limbo on his discharge status. f. On 6 November 2002, the applicant wrote a letter requesting assistance with completing his discharge from the military. The applicant states that due to his military limbo status he is missing out on job opportunities is this is hindering his ability to support his family. g. On 19 November 2002, the convening authority took action on the applicant's prior trial by court-martial. He indicated that the applicant having been arraigned, the proceedings were terminated on 19 November 2002, because the applicant's request for discharge pursuant to the provisions of Chapter 10, Army Regulations 635-200, was approved on 19 November 2002, for issuance of a discharge under other than honorable conditions discharge. The Charge and Specification are dismissed. All rights, privileges, and property of which the accused has been deprived by virtue of these proceedings would be restored. h. On 19 November 2002, the separation authority approved the request for discharge under the provisions of AR 635-200, chapter 10 with an under other than honorable discharge to include a reduction to private/E-1. i. The applicant was discharged on 21 January 2005. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions discharge. His DD Form 214 shows he completed 7 years, 5 months, and 10 days of active service. It also shows that he was awarded or authorized: * Good Conduct Medal (2nd Award) * Noncommissioned Officer Professional Development Ribbon j. On 7 March 2007, the Army Discharge Review Board sent him a letter that states after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of your discharge is denied. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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 at any time after the charges are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial. A discharge under other than honorable conditions is normally considered appropriate. 5. 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 review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record. The Board agreed the characterization for the misconduct was severe; however, the misconduct does not warrant an upgrade to an honorable discharge. The Board agreed to grant clemency in the form of an under honorable conditions characterization. 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 reissuing the applicant a DD Form 214 showing his characterization of service as 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 upgrading the characterization of his discharge to Honorable. 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 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. 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 ABCMR Record of Proceedings (cont) AR20170009609 0 4 1