IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20180003588 APPLICANT REQUESTS: In effect, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR2004101569 on 12 August 2004. Specifically, he 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 the Review of Discharge from the Armed Forces of the United States), dated 26 January 2018 * Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 26 January 2018 * Standard Form (SF) 180 (Request Pertaining to Military Records), dated 26 January 2018 * Disabled American Veterans (DAV) Contact Brief, dated 26 January 2018 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2004101569 on 12 August 2004. 2. The applicant states he would like to be allowed to use different veteran affiliated resources and to have the opportunity to visit VA hospitals as needed. He would like to further his education and to receive benefits afforded to veterans that were honorably discharged. He would like to be able to enter Army bases, to peruse facilities on any and all needed occasions, and to apply for educational and possible business grants and assistance. 3. The applicant enlisted in the Regular Army on 30 April 1986. He complete training as an equipment records and parts specialist. 4. The applicant accepted nonjudicial punishment (NJP) on 30 March 1987, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty, on or about 26 March and on or about 27 March 1987. 5. Court-martial charges were preferred against the applicant on 9 June 1987, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with wrongfully distributing .309 grams of cocaine, a Schedule II controlled substance, to a U.S. Army Soldier, on or about 13 March 1987, and for being absent without leave, from on or about 15 April until on or about 14 May 1987. 6. The applicant consulted with legal counsel on or about 24 June 1987. 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 a UOTHC, 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 Veterans Administration, 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 not to submit a statement. 7. The separation authority approved the applicant's request for discharge on 2 July 1987 and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 8. The applicant was discharged on 13 July 1987, 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. 9. 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. 10. The ABCMR denied the applicant's request for an upgrade of his discharge on 12 August 2004. The ABCMR determined that the applicant failed to submit sufficient evidence or convincing argument to warrant an upgrade of his discharge. 11. As new evidence the applicant provides a DAV Contact Brief requesting benefits in the form of employment, VA Loan Programs, medical, and an upgrade of his discharge. The DVA referred him to the Army Review Boards Agency. 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 considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, court-martial charges, his request for discharge and the reason for his separation. The Board considered the DAV Contact Brief provided by the applicant. The Board found insufficient evidence of in- service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :SX :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 to amend the decision of the ABCMR set forth in Docket Number AR2004101569 on 12 August 2004. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003588 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180003588 5 ABCMR Record of Proceedings (cont) AR20180003588 4