ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20180013555 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to 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 27 August 2018 * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 10 March 1986 * DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 16 June 1989 * letter to the applicant’s mother from Headquarters and Headquarters Company, 1st Battalion (Mechanized), 56th Infantry Regiment, Fort Benning, Georgia, dated 11 July 1989 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 25 April 1991 * a letter to his Member of Congress, with self-authored statement, dated 27 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: a. After joining the Army and completing training, he got the chance to go to Germany. When he got back, he was hanging out with his girlfriend and found out that she had stolen his neighbor’s debit card. As he was getting arrested, he told them that he knew nothing about it but they said someone had to pay since they couldn’t find her. So he was charged with the crime and sent to jail. b. He was told by his captain to report back to duty when he got out of jail. When he reported back, they told him that he was already discharged out of the Army. He stayed in California for a short time and then went home to Oregon. He started working and found out his fiancée was pregnant. While working, the police came to his job and arrested him for being absent without leave (AWOL). c. They asked him if he wanted to go to war (1 January 1991) and he told them no, as he wanted to see his child born before he went. He was told that he would get an UOTHC discharge because he refused orders. This has been a stressful journey for him and it is not how he thought the military treated Soldiers after the fact. 3. The applicant enlisted in the Regular Army on 26 March 1986. 4. The applicant accepted non-judicial punishment on 4 June 1987, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 12 May 1987 through on or about 15 May 1987. 5. Court-martial charges were preferred against the applicant on 29 January 1991, for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with being AWOL from on or about 2 June 1989 through on or about 10 January 1991. 6. The applicant consulted with legal counsel on or about 31 January 1991. 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 an UOTHC discharge, 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 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 elected not to submit any statements in his own behalf. 7. The separation authority approved the applicant's request for discharge on 10 April 1991, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 8. The applicant was discharged on 25 April 1991, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court- martial. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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 whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors 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 the evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :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 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 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 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// ABCMR Record of Proceedings (cont) AR20180013555 4 1