ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20180015244 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 293 (Application for the Review of Discharge from the Armed Forces of the United States) with personal statement 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 is requesting a second chance. The real mistake he made was taking a fall for a fellow Soldier for something he didn't do. He messed up his chances to reenlist or receive any benefits he could have received. He served proudly and fought in the first gulf war. He has missed out on several opportunities because he chose to help a fellow Soldier in saving his marriage by accepting the blame for his misdeeds. 3. The applicant enlisted in the Regular Army on 15 August 1989. 4. The applicant served in Kuwait during Operations Desert Shield and Desert Storm, from 9 August 1990 through 15 March 1991, for which he was awarded the Army Commendation Medal for meritorious service. 5. The applicant was awarded the Army Good Conduct Medal for his service from 15 August 1989 to 14 August 1992. 6. The available record contains no evidence of any monetary or disciplinary problems prior to December 1992. 7. The applicant's check cashing and charge privileges at the post exchange were suspended on 21 December 1992, based on his failure to keep his account payments current. 8. The Military Police investigated the applicant on a charge of larceny on 29 March 1993. The applicant initially denied the charges but later admitted to taking a fellow Soldier's automatic bank teller card and withdrawing a total of $800.00 without his permission. 9. The applicant received a general counseling statements on three occasions for disobeying a lawful order not to borrow any money from fellow Soldiers, failure to pay just debts, lying to his platoon sergeant, making false statements, and being recommended for court-martial and separation. 10. Court-martial charges were preferred against the applicant on 1 July 1993 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with three specifications of theft of monies from a fellow Soldier's bank account, on or about 11, 12, and 15 March 1993. 11. The applicant consulted with legal counsel on 1 July 1993. 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 under other than honorable conditions 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 lieu of trial by court- martial. 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 was advised and elected to submit a statement on his own behalf. The applicant stated he was requesting separation with either an honorable or general characterization of service. He had repaid the monies taken with the associated charges and provided receipts to document this fact. 12. The separation authority approved the applicant's request for discharge on 15 July 1993, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and be discharged UOTHC. 13. The applicant was discharged on 6 August 1993. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and his service was characterized as UOTHC. His DD Form 214 further shows he was discharged in the rank/grade of private/E-1. 14. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 15. The record does not contain and the applicant has not provided any evidence to support his allegation that he was "taking the fall" for another Soldier. 16. The Board may consider the applicant's earlier honorable record, award of the Army Commendation Medal and Army Good Conduct Medal, and service in South West Asia for consideration granting relief in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the Board found limited evidence of remorse on the applicant’s part, especially in consideration of the applicant’s statement that he was “taking the fall” for another Soldier with no evidence to support that claim. The Board further found insufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization or supported a clemency determination. Based on a preponderance of evidence, the Board agreed that the applicant’s discharge characterization 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. X CHAIRPERSON 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): Not Applicable 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 provides 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 UOTHC is normally considered appropriate. 4. 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// 5