BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20180001851 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) 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 the situation that led up to his discharge was an isolated event and holds no weight compared to the greater number of years that he had previously served under honorable conditions. While serving in the reserves without his knowledge, his wife used his government credit card and caused a debt. He did pay the debt and had no other disciplinary issue, he was treated harshly by his command. He has 2 years, 11 months, and 28 days of honorable active service, he made the rank of Sergeant, and received several awards and decorations. 3. On 20 April 1987, the applicant entered active duty. 4. On 22 July 1992, he was formerly reprimanded by his commander for making several unauthorized purchases on his Government Diners Club Card account and for failure to remit payment for the charges. The applicant acknowledged in writing, his irresponsible actions that occurred and had been assigned a counselor as well as been accepted in the Army Community Service (ACS) Budget Program. The commander directed the reprimand be filed in the applicants military personnel records jacket (MPRJ) for a period of three years. 5. On 14 July 1993, a report of proceedings by investigating officer was completed on the applicant. It shows the applicant made an oral statement, that he removed all items from normal mail distribution, whether regular or certified mail pertaining to his financial difficulties which were addressed to the unit commander. The investigating officer recommended that the appropriate disciplinary action should be taken to include if applicable punitive measures consistent with the nature and degree of the offense as determined by a court-martial. 6. On 14 July 1993, a memorandum from the Staff Judge Advocate (SJA), Fort Sam Houston, shows the chapter 14 separation packet that was sent to that office for disposition regarding the applicant has been turned over to the Fort Bliss, SJA office to assume jurisdiction. The Fort Bliss, SJA office assumed jurisdiction based upon additional misconduct which has been uncovered. The chapter 14 action request was superseded. 7. His record is void of a separation packet. However, his record does provide a memorandum recommending a trial by special court-martial empowered to adjudge a bad conduct discharge was completed on of 16 August and his DD Form 214 shows: . * Separation Date: 29 September 1993 * Net Active Service: 6 years, 5 months and 10 days * Separation Authority: AR 635-200, Chapter 10 * Type of Separation: Discharge * Character of Service: Under Other Than Honorable Conditions * Lost Time: NONE 8. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 9. His records show had honorable active service time from 20 April 1987 to 2 June 1990, he received two Good Conduct Medal awards, a Driver and Mechanic badge-w Bar. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. 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 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. c. 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. 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. 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, 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001851 3 ABCMR Record of Proceedings (cont) AR20180001851 1