IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20180008319 APPLICANT REQUESTS: The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge) 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 requests and upgrade to his discharge to honorable to assist in obtaining VA benefits. He further feels that he has paid his debt to his country even though he was not properly represented while on active duty. He was repeatedly passed over for promotion and went from being a motivated soldier to a soldier with the most negative attitude towards Army leadership. 3. On 20 August 1991, after 8 months in the Delayed Entry Program (DEP), the applicant enlisted into the Regular Army (RA) for a 4 year contract at the age of 18. He completed training and was awarded the military occupational specialty (MOS) 13B (Cannon Crewmember). A review of his records shows the highest rank he obtained was Private First Class (PFC). 4. Between 19 January and 20 April 1993, the applicant received two article 15s for: * Failure to go at the time to prescribed place of duty, disobeying and disrespecting a noncommissioned officer; punishment was reduction to Private (E-2), forfeiture of $213.00 pay, 14 days restriction, 14 days extra duty, and an oral reprimand. * Failure to obey an order; Punishment was reduction to Private (E-1) forfeiture of $190.00 pay, 14 days extra duty; and 14 days restriction. 5. On 3 June 1993, the applicant was charged with violations of Article 92 and Article 134 of the Uniformed Code of Military Justice (UCMJ). The charges read as: * Charge I, Violation of Article 92: By wrongfully storing a handgun in the glove compartment of a privately owned vehicle (POV) as prohibited by the Post Regulation. * Charge II, Violation of Article 134: For unlawfully carry on or about your person a concealed weapon inside the glove compartment of your vehicle. 6. On 10 June 1993, he requested a discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial and his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits and opted not to submit a statement on his own behalf. 7. On 22 June 1993, the appropriate authority approved the applicant’s request in lieu of trial by court-martial, and that his service be characterized as UOTHC. 8. On 28 June 1993, the applicant was discharged accordingly. His DD Form 214 shows he completed 1 year, 10 months, and 9 days of net active service, and is authorized the National Defense Service Medal, Army Service Ribbon, and marksman for the M-16 rifle. 9. Army Regulation 635-200 states a UOTHC when separated under Chapter 10 is authorized. 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. 10. The applicant states that he was repeatedly passed over for promotion and went from being a motivated soldier to a soldier with the most negative attitude towards Army leadership. A review of his records does not provide any information to support this assertion. The applicant enlisted in the Army at the age of 18 and completed 1 year, 10 months, and 9 days of a 4 year contract. He was charged with possession of a fire arm in his POV and concealment of a fire arm in his POV, both violations of the Fort Hood Regulation. As a result, he voluntarily requested a discharge in lieu of a trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations- Enlisted Personnel), chapter 10. 11. The applicant requests an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, 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 guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, 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 and the reason for his separation. The Board noted the facts presented above. The Board noted that he had legal counsel, that he voluntarily requested discharge under the provision of Chapter 10, in lieu of trial by court-martial, that he declined to submit a statement in his defense, that he acknowledged his understanding that by requesting discharge, that 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, and that he could receive a discharge under other than honorable conditions. 2. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was no post-service evidence to justify a clemency determination. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or under other than honorable conditions character of service, or basis for clemency. 3. After reviewing the application and all supporting documents, the Board found that relief is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XXX 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. 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), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. 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. 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) AR20180008319 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1