ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 June 2019 DOCKET NUMBER: AR20190001830 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 5 April 1996, to show the narrative reason for separation as "Misconduct" instead of "In Lieu of Trial by Court-Martial." 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), with self-authored statement dated 15 January 2019 * DD Form 214, for the period ending 5 April 1996 * an undated letter of support 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 was discharged due to unfortunate events for which he takes full responsibility for. When he was discharged in 1996, he was told his UOTHC discharge would be automatically upgraded to a general discharge after 6 months. He was not informed he had to apply for an upgrade. He is a homeless veteran trying to get healthcare and has been without healthcare for 23 years. He served during the Persian Gulf War era. His term of service was 4/14/89 to 4/5/96, which included a reenlistment period from 4/14/89 thru 12/09/92. He acknowledges his request is over 15 years. He just found out he is ineligible for Department of Veterans Affairs (VA) healthcare benefits. 3. The applicant enlisted in the Regular Army on 14 April 1989 and reenlisted on 10 December 1992. 4. Court-martial charges were preferred against the applicant on 30 January 1996 for violations of the Uniform Code of Military Justice (UCMJ). The DD Form 458 (Charge Sheet) shows he was charged with: * two specifications of failing to go at the prescribed time to his appointed place duty, twice, on or about 19 December 1995 * two specifications of wrongfully transporting a privately owned weapon in his vehicle and storing a privately owned weapon in his barracks room, on or about 31 October 1995 * one specification of wrongfully having a blood alcohol content of .074 during the duty day, on or about 21 November 1995 * one specification of assaulting another Soldier in the face and body, on or about 31 October 1995 * one specification of being drunk and disorderly, on or about 31 October 1995 5. The applicant consulted with counsel on 28 February 1996. 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 a bad conduct 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 further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wished for a review of his discharge. He realized that the act of consideration by either board did not imply that his discharge would be upgraded. d. He was advised he could submit any statements he desired in his own behalf. His request indicates he intended to submit a statement for consideration by the separation authority; however, no such statement is available for review. 6. The applicant’s counsel completed a memorandum for record on 29 February 1996, showing that counsel briefed the applicant’s chain of command on 28 February 1996 of the applicant's request for a Chapter 10 discharge. The memorandum further show his complete chain of command recommended approval of his discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, with a UOTHC discharge. 7. The separation authority approved the applicant's request for discharge on 1 March 1996, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and that his service be characterized as UOTHC. 8. The applicant was discharged on 5 April 1996, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. The DD Form 214 he was issued shows his service was characterized as UOTHC, and further shows in: * Item 18 (Remarks), includes the entries: * CONTINUOUS HONORABLE SERVICE 19890414-19921209 * IMMEDIATE REENLISTMENT THIS PERIOD – 19890414-19921209 * MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE * Item 28 (Narrative Reason for Separation), the entry "IN LIEU OF TRIAL BY COURT-MARTIAL" 9. 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. 10. The applicant provides a letter of support from a fellow veteran and friend of over 20 years, stating he needs the healthcare but was denied when he applied for VA benefits. 11. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 12. The Board should consider the applicant's service records, accomplishment, and request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and found the statement and evidence of personal meritorious achievements in the form of an Army Commendation Medal, three Army Achievement Medals, and a good conduct medal as well as previous honorable service to be compelling. The Board agreed that the applicant’s case warrants clemency in that the applicant’s previous honorable service and personal meritorious awards have mitigated the misconduct that resulted in the discharge characterization and narrative discharge. The Board further found that the applicant’s DD Form 214 is missing important information about the applicant’s service in that there is no foreign service listed in item 18 (Remarks). OARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 with effective date “86-08-01” be corrected as follows: 1. item 24 (Character of Service): “General Under Honorable Conditions” vice “Under Other Than Honorable Conditions,” 2. item 25 (Separation Authority) “AR 635-200, para 5-14”, vice “AR 635-200, Chap 10 3. item 26 (Separation Code) “JND”, vice “ KFS,” 4. item 18 (Remarks): add “Germany 891003 – 920108” 8/27/2019 X CHAIRPERSON Signed by: BENZINGER.MARY.M.1292680909 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): N/A 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 states 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 states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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 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//