ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:     23 January 2020DOCKET NUMBER:  AR20180007342 


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 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 14 December 2017



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.He was offered a discharge instead of trial by court-martial.  In the period beforethe event that triggered his court-martial charges, he had rededicated himself to becoming an exemplary Soldier.  He had rehabilitated and turned himself around. 

b.One Sunday, another Soldier was determined to go out and party as it was hislast chance before deploying.  The Soldier was a heavy drinker and the applicant had concern for him.  They both made the poor decision to go and the applicant was the designated driver.  They did not know that mileage was restricted.  They were involved in a single vehicle accident due to lack of sleep; he was not intoxicated.  He asks for an upgrade so that he may feel the pride of his service. 

3.The applicant enlisted in the Regular Army on 8 January 2002.

4.The applicant accepted non-judicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice (UCMJ), on the following dates for the indicatedoffenses:
.on 19 March 2003, for disobeying a lawful order on or about 10 October 2002, formaking a false official statement on or about 27 December 2002, and foravoiding service by feigning a knee injury on or about 27 December 2002

.on 9 April 2003, for wrongful use of marijuana between on or about 24 February2003 and 25 March 2003



5.Court-martial charges were preferred against the applicant on 30 June 2003, forviolations of the UCMJ.  His DD Form 458 (Charge Sheet) shows he was charged withwrongful use of marijuana between on or about 24 February 2003 and 25 March 2003,4 March 2003 and 2 April 2003, and 25 March 2003 and 23 April 2003.

6.The applicant consulted with legal counsel on or about 14 July 2003.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. 

b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service.  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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

c.He elected not to submit a statement in his own behalf.

7.The separation authority approved the applicant's request for discharge on 23 July2003, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial bycourt-martial, and directed his reduction to the lowest enlisted grade and the issuance ofa UOTHC discharge.

8.The applicant was discharged on 20 August 2003, under the provisions of ArmyRegulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214(Certificate of Release or Discharge from Active Duty) he was issued confirms hisservice was characterized as UOTHC.

9.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel 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 Board should consider the applicant's statement in accordance with thepublished equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records, regulatory requirements, and published DoD guidance forconsideration of discharge upgrade requests.  The Board considered the applicant’sstatement, his record of service, the frequency and nature of his misconduct, and thecharacter and reason for his separation.  The Board noted the facts presented above.The Board found insufficient evidence of in-service mitigation to overcome themisconduct and there was no post-service evidence to justify a clemency determination.The Board found the character of service equitable under the circumstances.  Based ona preponderance of evidence, the Board determined that there was no error or injusticein the applicant’s discharge or character of service, or basis for clemency.

2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : 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 


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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.
2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

 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.  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//