ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170018991 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or 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), dated 20 October 2017 * statement of material contentions * list of additional documents submitted in support of his application * Item #1 - self-authored detailed supporting statement * Item #2 - supporting statement from an Army staff sergeant * Item #3 - Department of Veterans Affairs (VA) letter, dated 4 October 1990 * Item #4 - list and copies of awards, commendations, and certificates he received while in the service * Item #5 - DD Form 214 (Certificate of Release or Discharge from Active Duty) * Item #6 - order to testify * Item #7 - Commonwealth of Pennsylvania, Department of Labor and Industry, Office of Employment Security Notice of Determination * Item #8 - memorandum barring him from U.S. Army Europe installations * Items #9 and #10 - two letters of recommendation, dated 9 April 1990 * Item #11 - VA Letter, dated 12 June 1990 * Item #12 - Request for Discharge for the Good of the Service * Item #13 - letter of debarment from Fort Dix, New Jersey, dated 17 April 1990 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: a. His discharge was inequitable because it was based on one isolated incident during 60 months of service. He had reached the rank of sergeant (E-5) and he never even had one Article 15. He was a good, motivated Soldier with many awards. b. He was supposed to reach his expiration term of service (ETS) date in June 1990; however, he was discharged in April 1990. He was within 2 months of leaving active duty; therefore, he does not believe his discharge was fair. c. His military lawyer never explained the ramifications of taking a Chapter 10. He testified at a friend's court-martial with immunity from prosecution, then he was charged with something that would send him to a court-martial. His lawyer told him he could take a Chapter 10 discharge and just go home. d. He was a dedicated Soldier and he does not believe it was fair for the Government to do that to him after 5 years of honorable service. 3. The applicant enlisted in the Regular Army on 8 January 1985. 4. Court-martial charges were preferred against the applicant on 21 February 1990 for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with maiming a staff sergeant by inflicting deep and disfiguring cuts on his face and the back of his scalp with a means likely to produce death or grievous bodily harm on 2 September 1989. 5. The applicant consulted with legal counsel on or about 27 February 1990. a. 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 the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision 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 his understanding 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. 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His request shows he made an election to submit a statement. However, there is no statement filed in his official record. 6. The separation authority approved the applicant's request for discharge on 16 March 1990 and directed reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 7. The applicant was discharged on 17 April 1990, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 8. 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. 9. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 10. The Army Discharge Review Board determined on 10 May 1993 that the characterization of the applicant's service was both proper and equitable. 11. The applicant provides: a. A self-authored detailed supporting statement in which he contends his discharge resulted from a plea bargaining in connection with charges brought against him under the UCMJ. He stated he believes the charges were brought unfairly in that the incident of 2 September 1989 that lead to the charges was on in which him and a fellow serviceman were attached by other servicemen and he acted in reasonable self- defense and in defense of his companion. b. A supporting statement from his employer attesting to his good on the job conduct and efficiency. c. A letter from the VA informing him that his UOTHC discharge constitutes a bar to the payment of VA benefits and a list of awards, decorations, letters of appreciation, letters of commendation, certificates of achievement, certificates of training, certificates of participation, and college credits he received while he was in the Army. d. A letter from his former first lieutenant and his former lieutenant colonel (Signal Corps) confirming the applicant's outstanding duty performance during the time he served as a graphic/drafting noncommissioned officer. 12. 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 discussed the applicant’s statement regarding the misconduct and his acting in self-defense, the letter of support he provided, the severity of the misconduct that led to his separation and whether to apply clemency. The Board weighed the evidence and determined that there were insufficient mitigating factors to overcome the severity of the misconduct and that clemency was not warranted in this case. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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. 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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 states 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 would normally be furnished to an individual who was discharged for the good of the service. 3. 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) AR20170018991 6 1