IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180011548 APPLICANT REQUESTS: an upgrade of his General, Under Honorable Condition Discharge (GD), restoration of rank to private first class (PFC), and repayment of pay and allowances. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter to Congressman * Memorandum for the Commander, 21st Theater Army Area Command, dated 30 May 1997 * Court Memorandum for the Convening Authority, dated 23 July 1997 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR 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. After having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army on 31 October 1994. 3. The applicant states, in effect, in a letter to his Congressman: a. He was brought on charges of larceny due to a mistaken overdraft. He was court martialed on 14 March 1997, given an less than honorable discharge, reduced to private E-1, had pay and allowances deducted, and was sentenced to several days in the stockade. b. He underwent cruel and unusual punishment. He accepted the court martial sentence after the sentence. His judgement was impaired by traumatic trauma and lingering pain and suffering from what he believes to be service connected injuries. On 12 April 1997, he was advised he had received improper legal advice and his conviction warranted an appeal. c. On 6 June 1997, there was a motion to set aside the conviction. His former defense attorney had him enter a plea without informing him he represented a client who was also involved in the case. The sentence was overturned; however, it has not been dealt with. 4. The applicant’s record shows he received nonjudicial punishment on the following occasions: a. On 13 November 1995, for failing to obey a lawful order. His punishment consisted of 14 days extra duty. b. On 19 March 1996, for being absent without leave. His punishment consisted of 14 days extra duty. c. On 3 July 1996, for wrongfully using marijuana and/or hash. His punishment consisted of reduction to private/E-1, forfeiture of $437.00 per month for 2 months, and 45 days extra duty. 5. On an unspecified date, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c for Commission of a Serious Offense. The company commander stated the applicant had tested positive for wrongful use of marijuana. The company commander recommended the applicant be issued an under other than honorable conditions (UOTHC). The applicant was advised of his rights. 6. On 24 September 1996, the applicant acknowledged notification of separation action and consulted with legal counsel. He requested legal representation and a personal appearance before an a administrative board, voluntarily waived consideration of his case by an administrative separation board. He also submitted a statement in his own behalf. 7. On 25 September 1996, in statement in reference to his discharge, the applicant stated in effect, he feels he should receive a GD. He made a mistake smoking hash and accepted his punishment; however, being put out of the Army with an UOTHC discharge is unfair considering the punishment of others in his unit. His service was good until he began to have family problems. 8. On 19 December 1996, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of Commission of a Serious Offense and directed a UOTHC discharge. 9. On 14 March 1997, the applicant was found guilty by a Special Court Martial of wrongfully appropriating U.S. currency. The sentence consisted of 26 days confinement and forfeiture of $560.00 per month for 6 months. 10. He was discharged on 12 April 1997, under the provisions of Army Regulation 635-200, paragraph 14-12c( 2) for misconduct. He completed 2 years, 5 months, and 13 days of net active service this period. His service was characterized as UOTHC. 11. There is no evidence showing he had a diagnosis of a disabling condition that rendered him unable to perform the duties required of his MOS or grade, or a medical evaluation that warranted his entry into the Physical Disability Evaluation System (PDES). 12. On 1 May 1997, the applicant, through his defense attorney, requested the adjudged conviction in his case be set aside, or in the alternative, his case be re-opened and a hearing be conducted into the issues of his immunization and his discharge with an other than honorable characterization of service. 13. On 10 May 1997, a post-trial Article 39a session was directed. 14. On 23 July 1997, it was recommended the convening authority disapprove the findings and sentence in the applicant's case. 15. On 6 August 1997, the findings of guilty and the sentence in the applicant court martial were disapproved and the charges were dismissed. 16. On 20 March 1998, the Army Discharge Review Board upgraded the applicant's UOTHC discharge to a GD. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. 18. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. 19. In reaching its determination, the Board can consider the applicant's petition, his statements, and available service record, in light of the published Department of Defense guidance on equity, injustice, or clemency. 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, the outcome of the Special Court- martial and the reason for his separation. The Board considered the subsequent disapproval of the findings and sentence and the dismissal of charges related to the court-martial, and the upgrade of his discharge by the ADRB. The Board found insufficient evidence of in-service mitigation to overcome the other 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 applicant’s current character of service is 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 : : : 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3 year statute of limitations if the Army Board for Correction of Military Records (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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a GD if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of regulation. b. Paragraph 3-7a provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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 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. 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) AR20180011548 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1