IN THE CASE OF: BOARD DATE: 6 February 2020 DOCKET NUMBER: AR20180012807 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 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 2 August 2018 * DD Form 293 (Application for the Review Discharge from the Armed Forces of the United States), dated 2 August 2018 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 Military Records (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. The applicant states he wants to be able to use the services and the benefits that he is entitled to as a military veteran. He had a medical disability discharge in process before he was discharged UOTHC. 3. The applicant enlisted in the Regular Army on 11 October 1995. He completed training as a personnel administrative specialist. 4. The applicant was issued a General Officer Memorandum of Reprimand (GOMOR) on 6 May 1996. According to the GOMOR, at 2356 hours on 12 April 1996, on Kadena Air Base, Okinawa, Japan, the applicant was apprehended for drunk driving. He was administered a blood alcohol content (BAC) test, which resulted in a BAC of .12 percent. The applicant was told: a. His conduct raised extremely serious questions concerning his self-discipline and judgment and that he had apparently chose to disregard Japanese law, Army Regulation and his command's emphasis on not operating a motor vehicle while under the influence of alcohol. Operating a motor vehicle in such a manner demonstrated his disregard for his own safety and for the safety of others and would not be tolerated. b. The reprimand was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice (UCMJ). Due to the serious nature of the incident, the intent was to have a copy of the GOMOR filed in his Official Military Personnel File (OMPF), but careful consideration would be given to any matters he submitted before a decision was made. The GOMOR was being referred to him for his comment per Army Regulation 600-37 (Unfavorable Information). 5. The applicant submitted a memorandum for the Commanding General, wherein he acknowledged that he was apprehended for driving while intoxicated and had been given a BAC test, the result of .12 percent indicated he was legally intoxicated. The applicant stated he operated a motor vehicle as a favor to a friend and drove about 200 feet from Gate 3 of Kadena Air Base because he did not have his identification card to enter the premises. He knew he should have informed his friend that he had been drinking but it was just to get pass the gate. He knew it was poor judgment on his behalf and he was very sorry that he broke a military and Japanese law. It was a learning experience for him about doing personal favors. He planned to think more clearly about his actions in the future; therefore, he did not believe the GOMOR should stay in his record throughout his career. It was a stupid mistake and it could hinder his opportunity to excel and his ability to prove he was motivated and eager to lean. 6. The applicant's company commander recommended that the GOMOR be filed in the U.S. Army Japan Office of the Staff Judge Advocate, to be destroyed one year after transfer from his general court-martial jurisdiction. The battalion commander recommended, on 23 May 1996, that the GOMOR be filed in his OMPF. The commanding general directed that the GOMOR be filed in the applicant's OMPF on 19 July 1996. 7. The applicant reenlisted in the Regular Army on 16 October 1998. 8. The applicant accepted nonjudicial punishment on 24 November 1999, under the provisions of Article 15 of the UCMJ, for physically controlling a vehicle while drunk and for violating a lawful general regulation by wrongfully driving a U.S. Army Europe (USAREUR) plated vehicle with an open container of alcohol in the passenger area, on or about 13 November 1999. 9. The applicant was counseled on the following dates for violations of the UCMJ. DA Forms 4856 (Developmental Counseling Forms) show the following offenses: * 12 February 2001 – breaking restriction * 20 February 2001 – failure to report to his appointed place of duty at the prescribed time on 17 February and 18 February 2001 * 20 February 2001 – failure to obey a lawful order * 21 February 2001 – failure to follow an order of a superior * 12 March 2001 – failure to be at his proper place of duty * 21 March 2001 – failure to be at his proper place of duty * 21 March 2001 – lying about his whereabouts during that weekend 10. Court-martial charges were preferred against the applicant for violations of the UCMJ. The first page of the applicant's DD Form 458 (Charge Sheet) is not available for review. The first page reflects Charge I – Specifications 1 through 4. Specification 5 shows he was charged with failure to go at the time prescribed to his appointed place of duty, to wit: 0630 accountability formation on or about 21 March 2001. The second and third pages of his DD Form 458 lists his charges and specifications as follows: Charge II: Violation of the UCMJ, Article 90 Specification: Willfully disobeying a lawful order from his superior commissioned officer to be restricted to the billets area, place of duty, dining facility and place of worship on ray Barracks or words to that effect on or about 4 February 2001. Charge III: Violation of the UCMJ, Article 91 Specification 1: Willfully disobeying a lawful order from his senior noncommissioned officer (NCO) to call a staff sergeant on or about 21 February 2001. Specification 2: Willfully disobeying a lawful order from a senior NCO to sleep at the Charge of Quarters desk on or about 21 February 2001. Specification 3: Willfully disobeying a lawful order from a senior NCO to report to him fifteen minutes prior to first formation on or about 12 March 2001. Specification 4: Willfully disobeying a lawful order from a senior NCO to report to him fifteen minutes prior to first formation on or about 21 March 2001 Charge IV: Violation of the UCMJ, Article 112a Specification 1: Wrongfully using marijuana, a Schedule I controlled substance, on, about or between 7 October 2000 and 7 November 2000 Specification 2: Wrongfully using marijuana, Schedule I controlled substances, on, about or between 4 January 2000 and 4 February 2000 11. The applicant's separation processing documentation is not available for review. However, the commanding general's (CG) approval of the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial is available. The CG directed the applicant's discharge UOTHC. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 4 May 2001, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. He completed five years, six months and 24 days of net active service this period and he was discharged in rank/grade of private/E-1. 13. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. 14. There is no evidence in the available record and the applicant has not provided any evidence to support his contention that he was being processed for discharge through medical channels prior to his discharge. 15. The ABCMR has no policy for the automatic upgrading of discharges to assist an individual in qualifying for benefits that are afforded to military veterans. 16. The Board should consider the applicant's provided evidence and 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, the reason for his separation and the absence of separation packet. The Board found insufficient evidence of in-service mitigation for 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. The Board concurs with the corrections statement in the Administrative Note(s) below. 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, with the exception of the corrections stated in the Administrative Note(s) that follow, 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): A review of the applicant's record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 4 May 2001, is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding in item 18 (Remarks) the entry "IMMEDIATE REENLISTMENTS THIS PERIOD: 951011 TO 981015 AND 981016 TO 20010504" and CONTINUOUS HONORABLE SERVICE 951011 TO 981015.” 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. 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. 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) AR20180012807 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180012807 6 ABCMR Record of Proceedings (cont) AR20180012807 5