ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20180000815 APPLICANT REQUESTS: an upgrade to his under other than honorable conditions discharge 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 ample time has passed since this infringement which justifies a reversal of this adverse action. His refusal to sign the article 32 against another Soldier, which he believed was unjust, was not a valid reason to change the nature of his discharge. All of his Basic Allowance for Quarters (BAQ) debt is now paid in full. 3. A review of the applicant's service record shows: a. Having had prior service, he was commissioned as a United States Army Reserve Officer on 8 July 1977, and entered active duty on 14 January 1979. b. On 9 November 1989, court-martial charges were preferred against the applicant for larceny, perjury, conduct unbecoming an officer, and false swearing. An additional charge of absence without leave was preferred against the applicant on 11 December 1989. Investigation under the provisions of Article 32(b), UCMJ, was unconditionally waived by the defense on 8 January 1990. c. On 4 January 1990, the applicant voluntarily submitted his request for resignation from the Army for the good of the service under the provisions of Chapter 5 of Army Regulation 635-120. He indicated that he did not desire to appear before a court- martial or a board of officers. He acknowledged that he was not subjected to coercion with respect to his resignation and was advised of and fully understood the implications of his action. d. He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request. The applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate; that he would be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. e. Consistent with the chain of command recommendations on 14 March 1990, the Deputy Assistant Secretary (DA Review Boards and Personnel Security) approved the applicant's resignation with a discharge other than honorable conditions f. On 25 April 1990, the applicant was discharged under other than honorable conditions under the provisions of Chapter 5 of Army Regulation 635-120, conduct triable by court-martial. He had served 11 years, 3 months, and 12 days of active service. 4. Army Regulation 635-120 (Officer Resignations and Discharges) implements the statutory provisions of Title 10 United States Code governing officer separations and provides policies and procedures for separating officer from active duty. Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100. The regulation provides that a resignation for the good of the service, when approved at Headquarters Department of the Army, is normally accepted as being under other than honorable conditions. 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 insufficient evidence to grant relief. The applicant’s contentions, his service record, the frequency and nature of his misconduct to include the amount of money involved and the statement to an investigating officer, and the reason for his separation were carefully considered. The Board applied Department of Defense guidance for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board acknowledged that the applicant repaid the money he received without entitlement, but found insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant did not provide character witness statements or evidence of post-service achievements for the Board to consider in support of a clemency determination. Based upon a preponderance of evidence, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct and not in error or unjust. 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. 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 600-8-24 (Officer Transfers and Discharges), paragraph 1– 22c, currently in effect, provides that a discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable. Officers will normally receive an "Under Other Than Honorable Conditions" when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, are involuntarily separated for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, and/or are discharged following conviction by civilian authorities. a. paragraph 1-22a provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. b. paragraph 1–22b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to an officer whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 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.