ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 May 2019 DOCKET NUMBER: AR20180000255 APPLICANT REQUESTS: an upgrade of his under other than honorable condition discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Character statement by X___, dated 15 August 2017 * Character statement by X___, dated 22 August 2017 * Character statement X___, dated 5 October 2017 * Voice Mail Verbatim transcript, dated 6 November 1997 thru 10 April 1998 * Phone Call Memorandum, dated 12 December 1997 * Phone Interview between Ms. X___ and CPT X___, dated 13 March 1998 * Self-authored statement, dated 7 May 1998 * Support Memorandum by X___, dated 7 May 1998 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 is requesting to upgrade his discharge to honorable or at least a general discharge. He states that when he requested the chapter 10 back in May of 1998, his voice wasn’t heard and decisions were made based on one side. It was unfortunate that his career, the one the he worked very hard to develop, ended in this manner. He had accepted the fact and moved forward with his life. After a decorated 10 and a half year career in the Army, his only regret was that he did not do his due diligence and use better judgement in the actions that led up to the charges that were brought against him which lead to his requesting the chapter 10 discharge. He does not claim to be totally innocent as he did knowingly receive the said items he purchased at the Exchange at a very discount price. He states that Ms. Wil took the liberty of not charging him for all items on her own and he used poor judgement in not stepping up to say “no, that isn’t right: which is his fault. He was willing to take 1. punishment in a letter of reprimand or Article 15 but the investigators were set on making an example out of him. Nothing was considered in his defense like his excellent service record, character statements submitted by his peers, prior platoon sergeant and other leaders and his previous 2 honorable discharges from 2 previous reenlistments. He felt he should have been punished in some form that allowed him to continue with his military career. He was not given that opportunity and therefore he requests his discharge be upgraded. 3. The applicant provides a copy of the character statements from a former retired platoon sergeant, two retired First Sergeants, a Memorandum of Record for a phone call from Ms. Wi to the Trial Defense Service, and Captain (CPT) V , a transcript of his voice messages left by Ms. Wil , his request for discharge and a statement from CPT V . 4. A review of the applicant’s service record shows: a. 8 June 1987, he enlisted in the Regular Army (RA). b. 29 October 1991 and 28 June 1996, he was honorably discharged for immediate reenlistment. c. On 25 February 1998, court-martial charges were preferred against the applicant. His DA Form 458 (Charge Sheet) shows he was charged with one specification of theft from the U.S. Army and Air Force Exchange Service (AAFES) and conspiracy to commit larceny from AAFES. d. He consulted with legal counsel on 7 May 1998 and subsequently requested discharge under the provisions of Army Regulation (AR) 635-200 (Enlisted Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial). In his request he acknowledged: * he was making this request of his own free will and had not been subject to any coercion whatsoever by any person * by submitting this request for discharge, he understood the elements of the offense charged and he is guilty of the charge against him * he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service * as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law * he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge * * he understood he would be automatically reduced to the pay grade of Private E-1 during his out-processing and his final payment would reflect that fact * he submitted several statements on his own behalf e. In his statement, the applicant requested he be issued a general discharge because he thought it would be in the best interest of all parties concern. He accepted the fact his career was over and was ready to move forward with his life. He proudly enlisted in the Army because he knew the Army was a great organization that takes care of its people and it provides wonderful opportunities for its members. Nearly ten and a half years later, he has no regrets of joining the Army and leaving Fort McClellan to begin his journey in the U.S. Army Ordnance Corps. While a member of the prestigious corps, he had an opportunity to serve his country in several CONUS (Continental United States) installation, the Republic of Korea, Germany and Saudi Arabia during Desert Shield/Storm. One of his proudest moments in his military career was when his unit returned from the Gulf War to the cheers of many congratulating them on their victory. He had a permanent change of station (PCS) from Korea to Redstone Arsenal and was assigned to D Company, 82nd Ordnance Battalion where he was an instructor in the Electronics Technology and Training Department. While teaching the students he knew he was providing a valuable and worthwhile service to not only the school, but to the Army as well. He has been awarded numerous awards, letters and certificates of appreciation and achievement. f. In a statement submitted by CPT X___ on behalf of the applicant, he stated in light of the applicant’s excellent record and the applicable provisions of AR 635-200, that the applicant be issued a general discharge certificate. He stated that he is not asking for the applicant to receive an honorable discharge but stated it is important that the latter not be discarded simply because a court-martial had been convened for the underlying misconduct. To do so would be an injustice in and of itself. g. Consistent with the chain of command recommendations, on 8 May 1998, the separation authority approved the applicant's request for discharge. He would be reduced to the lowest enlisted grade and issued an Under Other than Honorable Conditions Discharge Certificate. h. On 18 May 1998, he was discharged from active duty. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10 and he received an under other than honorable conditions characterization of service. He completed 10 years, 6 months and 14 days of active service. His DD 214 shows in: * Army Commendation Medal with three oak leaf clusters * Army Achievement Medal * Army Good Conduct Medal with three oak leaf clusters * National Defense Service Medal * Southwest Asia Service Medal with two oak leaf clusters * * Noncommissioned Officer Professional Development Ribbon with Numeral 2 * Army Service Ribbon * Overseas Service Ribbon with Numeral 2 * Kuwait Liberation Medal * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Grenade Bar 5. By regulation, a member who has committed an offense 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. 6. 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 relief was not warranted. Based upon the type of misconduct leading to the discharge and, in the opinion of the Board, insufficient character evidence to show what the applicant has done since the discharge to demonstrate he has learned and grown from the events leading to the administrative separation, the Board concluded that the characterization of service 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. 5/16/2019 X CHAIRPERSON Signed by: 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), sets 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. 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 1. 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.