ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 June 2019 DOCKET NUMBER: AR20190002056 APPLICANT REQUESTS: In effect, correction of his DD Form 214 to show his characterization of service as general, under honorable conditions, in lieu of under other than honorable conditions (UOTHC). 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) in lieu of a DD Form 149 (Application for Correction of Military Record) * DD Form 214 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. The applicant states, in effect, he has lived a clean and upstanding life as a productive citizen since he was discharged from the military. He has no criminal record and he has obtained and kept his CDL [Commercial Driver’s License] for the past 14 years. 3. On 7 August 1996, the applicant enlisted in the Regular Army for 4 years. He held military occupational specialty (MOS) 92A (Automated Logistical Specialist). He was assigned to Fort Richardson, AK, on 12 February 1997 with the principal duties of his MOS. 4. The applicant's record does not contain all of the facts and circumstances surrounding the discharge process, however, it does contain the following documents: a. A voluntarily request for discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel) due to the charges that had been preferred against him under the Uniform Code of Military Justice, which authorized the imposition of a bad conduct or dishonorable discharge. This document shows he acknowledged he had been afforded the opportunity to speak with counsel [on 16 September 1999] prior to making his request and of the procedures and rights that were available to him. He acknowledged he understood, if his request was accepted he could receive an UOTHC discharge. He indicated statements were being submitted with his request. b. A statement that was provided in his own behalf requesting, in effect, a discharge under the provision of chapter 10, with service characterized as general, under honorable condition for the following reasons: * he joined the military to make a better life for him and his family * he benefitted from being in the service and he had enjoyed it * he was in an unfortunate predicament and he was requesting compassion * his time in the service had been adventurous and a learning experience, he desired to use the skills he had learned in civilian life * an UOTHC discharge would hinder him from being able to care for his children c. A statement from his platoon sergeant indicating the applicant’s attitude and performance had met the unit’s standard. His habits had improved tremendously over the past year and he believed the applicant should be given the opportunity to continue to progress. The applicant had kept his composure throughout the hardship and stressful periods during his military career. d. A second statement from a person in his unit who indicated, in effect, even though the applicant had been brought up on charges he continued to be a good Soldier and he continued to take care of his family. 5. On 17 September 1999, his immediate commander recommended approval of the applicant’s request with the issuance of an UOTHC discharge. The applicant’s intermediate commanders also recommended separation with an UOTHC discharge. 6. On 27 September 1999, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial and directed the issuance of an UOTHC discharge. The applicant was accordingly discharged on 6 October 1999. His DD Form 214 confirms he completed a total of 3 years and 2 months of creditable active military service. 7. Orders 270-0006, from Detachment 2, 203d Personnel Services Battalion, Fort Richardson, AK, confirms the applicant was assigned to the U.S. Army Transition Point with a reporting date of 6 October 1999, for discharge processing. 8. The available evidence shows he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court- martial. Although an honorable or general discharge is authorized, an UOTHC discharge was normally considered appropriate. 9. He contends his discharge should be upgraded because he has lived a clean and upstanding life as a productive citizen since he was discharged. His has no criminal record and he has obtained and kept his CDL for the past 14 years. According to the available evidence the applicant completed three fourths of his 4 year enlistment obligation. 10. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. 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, the applicant’s three years of previous honorable service, and statements at the time of discharge to be compelling. Therefore, the Board found sufficient evidence to upgrade the discharge. BOARD 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 the applicant’s DD Form 214 for the period ending “1999-10-06” showing his characterization of service as “General Under Honorable Conditions.” 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 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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, an UOTHC discharge is normally considered appropriate. b. 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. c. Paragraph 3-7b, states 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. 3. 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 (BCM/NRs) 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. 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 based on equity, injustice, or clemency grounds, BCM/NRs 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) AR20190002056 4 1