ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  23 September 2019

	DOCKET NUMBER:  AR20180014845


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than 
honorable conditions (UOTHC) discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  DD 
Form 149 (Application for Correction of Military Record).

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.  On 21 August 1993, the applicant enlisted in the Army Reserve under the Delayed 
Entry Program.  On 17 November 1993, the applicant enlisted in the Regular Army for a 
term of 4 years.  On 29 November 1995 he extended his enlistment for 20 months to 
meet service requirement for a tour in Germany.  On 13 August 1998, he enlisted for a 
term of 5 years and subsequently extended his enlistment for one month.   

3.  The DD Form 458 (Charge Sheet) is not available for review; however, a separation 
packet shows he voluntarily requested discharge for the good of the service in lieu of 
trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10.  He consulted with counsel and was 
advised of the basis for the trial by court-martial, his available rights and the basis for 
voluntarily requesting discharge under the provision of AR 635-200, chapter 10.  T
   
    a.  The applicant elected to submit statements on his own behalf, it states, in 
pertinent part, he has served in the Army for 9 years and enjoyed the opportunity to 
serve his country, teach and mentor Soldiers.  In the past year he made some poor 
decisions that resulted in pending court-martial charges.    Over the past year he and 
his wife have had marital and financial problems.  She was in the U.S. now with their 6-
year old son and he very much wanted to preserve his marriage.  Issuing him a general 
discharge instead of an under other than honorable conditions discharge would greatly 
improve his chances to preserve his marriage and find a job.  He was not asking for his 
actions to be condoned.  He knows they were wrong and did not live up to the honesty, 
responsibility and integrity trademarks required of a noncommissioned officer.  He had 
no other indiscipline issues or nonjudicial punishment (NJP) prior to this and requested 
separation with a general discharge be considered.  

      b.  The Battalion Chaplain provided a statement in support of approval of a general 
discharge.  He stated the applicant recently plea-bargained for an "other than 
honorable" discharge instead of taking a change of fighting a court-martial.  He was 
pending different charges for mishandling mail.   The Chaplain personally feels the 
applicant had a good chance at winning his case, but his family came first.  The 
applicant has deployed to different countries and served his country well.  If not for a 
lapse in judgement, the applicant would probably still be in the Army.  He felt the 
applicant should receive a general discharge.  

      c.  The defense counsel submitted two memorandums, subject:  Chapter 10 
Request and Level of Discharge in the case of (U.S. v. Applicant), which he 
recommended the applicant receive a general discharge, explained the purpose of the 
memorandum; provided the procedural background; and background and discussion of 
the offenses charged, stating on 13 November 2002, the applicant was charged with 
violation of Articles, 92 (dereliction of duty) 107 (false official statement) and 134 
(secreting mail):
      
The crimes with which [the Applicant] is charged stem from a single 
series of incidents involving distribution of mail in the PAC 
(personnel administration center) of [Headquarters and 
Headquarters Company, 1st Battalion, 508th Regiment].  Bags of 
bulk, misdirected and other mail were found in a closet near [the 
Applicant’s] desk in the PAC and he later admitted that he had put 
the mail there over time with the intent of redirecting it to the proper 
place.  When first asked about the bags, [the Applicant] was not 
truthful with CID (Criminal Investigations Division).  [The Applicant] 
recognizes that what he did was wrong.  [The Applicant] is also in 
the midst of trying to save his marriage and move his life in the right 
direction.  He knows that he needs to provide for his six-year old 
son and his wife and that he can no longer do that in the Army.  
The crimes that he is charged with do not involve violence and 
there will be no lasting impact on his fellow soldiers or his unit.  

4.  The applicant's chain of command recommended approval of his request; the 
immediate commander recommended a general discharge and the intermediate 
commanders recommended a UOTHC.  On 23 January 2003, the appropriate 
separation authority approved the applicant's request directing the applicant be reduced 
to the grade of E-1 and he be issued a characterization of under other than honorable 
conditions. 

5.  On 30 January 2003, he was discharged accordingly.  His service was characterized 
as UOTHC.  He completed 9 years, 2 months, and 14 days of net active service this 
period, with 6 years, 6 months, and 26 days of Foreign Service.  His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he was awarded or 
authorized:

*	Army Commendation Medal
*	Army Achievement Medal (2nd Award)
*	Army Good Conduct Medal (2nd Award)
*	National Defense Service Medal
*	Southwest Asia Service Medal with one bronze service star
*	Armed Forces Service Medal
*	Noncommissioned Officer Professional Development Ribbon
*	Army Service Ribbon
*	Overseas Service Ribbon with numeral two
*	North Atlantic Treaty Medal
*	Drivers Badge

6.  On 18 January 2011, the Army Discharge Review Board denied his application for 
an upgrade, determining that he was properly and equitably discharged.

7.  The applicant requests the Board consider his request to upgrade his discharge.  His 
record is void of the charge sheet; however, the available evidences shows he was 
charged for dereliction of duty, false statement and secreting [to hide in an unknown 
place] mail, specifically he was charged for bulk mail being found in a closet in the 
orderly room and when asked by CID he was not initially truthful;  He was charged and 
his case was referred to a special court-martial empowered to adjudge a bad conduct 
discharge where these violations carried a maximum punishment of reduction, forfeiture 
of pay and confinement for 12 months, and a bad conduct discharge and resulted in the 
applicant requesting discharge in lieu of a court-martial. 
 
     a.  The text of statute of Article 134 says that all neglects and disorders which are 
adverse to the discipline and good order found in the armed forces and all conduct 
which can bring discredit to the armed forces, and offenses and crimes that are not 
capital will be punished by convening a court martial.  Paragraph 93 concerns a service 
member who takes, opens, secretes, destroys or steals mail that does not belong to 
him. It provides in pertinent part, the secrecy of mails cannot be violated. Depredation 
against or tampering with mails is an offense under the UCMJ and can be punished as 
decided by a court martial. "Mail matter" means any matter deposited in a postal system 
of any government and defines the clauses and following elements specifically 
associated to mail secreting.
     
         (1)  The maximum punishment that can be levied on an individual who is held 
guilty of committing this offense is a dishonorable discharge, forfeiture of allowances 
and pay and 5 years of confinement.  

        (2)  If the conduct is punished under disorder or neglect to the prejudice of good 
order and discipline in the Armed Forces, or of a nature to bring discredit upon the 
armed forces it is required to prove:  (1) The accused did or failed to do certain acts; 
and (2) that under the circumstances, the accused's conduct was to prejudice of good 
order and (3) discipline in the armed forces or was of nature to bring discredit upon the 
armed forces.  

        (3)  "To the prejudice of good order and discipline" refers to direct acts, not to acts 
which are prejudicial only in remote or indirect sense.  Almost any irregular or improper 
act on the part of a member could be regarded as prejudicial in some indirect or remote 
sense; this article does not include these distant effects. An act in violation of a local 
civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the 
prejudice of good order.  

     b.  AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by 
court martial.  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.

     c.  He served honorably from the date of his enlistment on 17 November 1993 to the 
day prior to his reenlistment on 12 August 1998.  He completed 4 years, 5 months, and 
18 days of his 5 years and 1 month contractual obligation (reenlistment).  He served a 
total of 9 years, 2 months and 14 days of net active service.  Based on the available 
evidence and the merit of his record he honorably served 8 years, 11 months and 27 
days [all but approximately 2 months of his career] without indiscipline.    

8.  In support of the applicant the chaplain stated the applicant was experiencing 
personal hardship and believed he would have not been charged had he went through 
the court-martial.  His defense counsel also provided specifics on the personal 
hardships he was experiencing at the time and endorsed his request to receive a 
general discharge and stated the crimes in which charged for do not involve any 
violence and there would be no lasting impact on fellow soldier or the unit because of 
what he did and his unit commander recommended he receive a general discharge.  His 
record is void of evidence that implies or indicates his action was a direct act to 
intentionally bring discredit upon the armed forces or to the prejudice of good order and 
discipline.  In reaching its determination, the Board can consider the applicant’s petition 
and service record 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 and the reason for his separation.  
The Board found insufficient evidence of in-service mitigation to overcome the 
misconduct and the applicant provided no evidence of post-service achievements of 
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 concurred with the correction 
stated in the Administrative Note(s) below.

2. After reviewing the application and all supporting documents, the Board found that 
partial relief was warranted.
?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

: X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:
1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected as stated in 
the Administrative Note(s) that follow.

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrade of character of service.




	  
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 30 January 2003, is missing 
important entries that affect his eligibility for post-service benefits.  As a result, amend 
the DD Form 214 by adding the following entries to item 18 (Remarks):

*	"SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE"
*	"CONTINUOUS HONORABLE ACTIVE SERVICE FROM 931117 UNTIL
980812"

?
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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set forth the basic authority for the administrative separation of 
enlisted personnel, it states:

   a.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization is appropriate when the 
quality of the soldier'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 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.
   
   c.  When a member is to be issued a discharge under other than honorable 
conditions, the convening authority will direct his immediate reduction to the lowest 
enlisted grade.
   
   d.  A Chapter 10 (Discharge for the Good of the Service) is applicable to members 
who had committed an offense or offenses for which the authorized punishment 
included a bad conduct or dishonorable discharge could submit a request for discharge 
for the good of the service.  The request could be submitted at any time after the 
charges had been preferred.  Although an honorable or general discharge was 
authorized, an under other than honorable conditions discharge was normally 
considered appropriate.  

3.  Article 134 (Mail: taking, opening, secreting, destroying or stealing).  These offenses 
are intended to protect the mail and mail system.  "Mail matter" means any matter 
deposited in a postal system of any government or any authorized depository thereof or 
in official mail channels of the United States or any agency thereof including the armed 
forces.  The value of the mail matter is not an element.  Lesser included offenses:  
Larceny (Article 122), Attempts (Article 80).  Maximum punishment is Dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for 5 years. 

       a.  Elements:  
          
            (1)  Taking: 
*	The accused took certain mail matter; 
*	Such taking was wrongful
*	That the mail matter was taken by the accused before it was delivered to 
or received by the addressee; 
*	That such taking was with the intent to obstruct the correspondence or 
pry into the business of secrets of any person or organization: 
*	That, under the circumstances, the conduct of the accused was to the 
prejudice of the good order and discipline in the armed forces or was of 
a nature to bring discredit upon the armed forces

   (2)  Opening, secreting, destroying or stealing
   
*	That the accused opened, secreted, destroyed or stole certain mail 
matter;
*	That such opening, secreting, destroying or stealing was wrongful
*	That the mail matter was opened, secreted, destroyed or stolen by the 
accused before it was delivered to or received by the addressee; and 
*	That, under the circumstances, the conduct of the accused was to the 
prejudice of good order and discipline in the armed forces or was of a 
nature to bring discredit upon the armed forces. 
          
        b.  Article 134 (General Article) of UCMJ makes punishable acts in three 
categories of offenses referred to as clauses 1,2, and 3. 

             (1)  Clause 1 – Offenses involve disorders and neglects to the prejudice of good 
order and discipline in the armed forces. 

             (a)   "To the prejudice of good order and discipline" refers to direct acts, not to 
acts which are prejudicial only in remote or indirect sense.  Almost any irregular or 
improper act on the part of a member could be regarded as prejudicial in some indirect 
or remote sense; this article does not include these distant effects. An act in violation of 
a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect 
to the prejudice of good order.  

           (b)  A breach of a custom of the service may result in a violation of clause 1; 
"custom" means more than a method of procedure or a mode of conduct or behavior 
which is merely of frequent or usual occurrence.  Many customs are now set forth in 
regulation , violations of these customs should be charged under Article 92 of the 
regulations in which they appear if the regulation is punitive.  

          (2)  Clause 2 – Conduct of a nature to bring discredit upon the armed forces.  
"Discredit" means to injure the reputation of.  Conduct which has a tendency to bring the 
service into disrepute or tends to lower it in public esteem.  

         (3)  Clause 3 – Noncapital crimes or offenses while violate federal law.   Clause 3 
is divided into two groups: 

         (a)  Crimes and offenses of unlimited application (crimes which are punishable 
regardless whey they may be committed) Examples include, counterfeiting. 

         (b)  Crimes of offenses of local application (crimes which are punishable only if 
committed in areas of federal jurisdiction.)

     c.  Conviction depends on the nature of the misconduct charged.  If the conduct is 
punished as a crime or offense not capital, the proof must establish every element of 
the crime or offense as required by the applicable law.  If the conduct is punished under 
disorder or neglect to the prejudice of good order and discipline in the Armed Forces, or 
of a nature to bring discredit upon the armed forces the following proof is required:  (1) 
The accused did or failed to do certain acts; and that under the circumstances, the 
accused's conduct was to prejudice of good order and discipline in the armed forces or 
was of nature to bring discredit upon the armed forces.  

4.  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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds. 

   a.  The guidance does not mandate relief, but rather provides standards and 
principles to guide Boards in application of their equitable relief authority.
   
   b.  In determining whether to grant relief on the basis of equity, an injustice, or 
clemency grounds, BCMRs shall consider the twelve stated principles in the guidance 
as well as eighteen individual factors related to the applicant.


ABCMR Record of Proceedings (cont)	 AR20180014845

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