ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 June 2019 DOCKET NUMBER: AR20190002127 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an under honorable conditions (general) discharge or 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) 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. He requests his discharge be upgraded for several reasons. He knows that one night of stupid, drunken behavior does not define the Soldier he was or his military career. While he was stationed in Alaska, he went to every school they would let him go to. He went to truck driving school, combat lifesaver school, and air assault school. b. In Alaska, he trained hard and he also played hard. Lots of drinking and fighting amongst other units and as long as it was not too bad or it occurred off post, it was somewhat accepted. His ex-wife cheated on him while he was at Fort Lee. She was at Fort Richardson and he did not handle it well. He tried but through it all, he started drinking again like he did in Alaska c. The day he broke into the golf course, he was in a bad spot and he actually went to play golf to get his mind off of his failed marriage. During his round of golf, he caught up with some older guys and they said he could finish up with them. One of the guys said "if you weren't playing with cheap rental clubs, you would be pretty good." Not thinking much about it, he finished his round and went home. Later that day, after a few hours of fighting with his now ex-wife, another Soldier asked him repeatedly to go to the noncommissioned officer (NCO) club to get away from fighting. He remembers "slamming" drink after drink but he is not sure how many. All he remembers about breaking into the golf course club house is going through a window, being inside, and running from the club house. d. He is ashamed of what he did, having to call his parents and explain to them why he was getting kicked out of the Army. However, after all of these years, he has realized that one incident will not define his military career. 3. The applicant enlisted in the Regular Army on 3 June 1993. 4. The applicant arrived in Alaska on 5 November 1993 and was assigned to the 306th Forward Support Battalion. He departed Alaska on or about 6 November 1995 and was assigned to the 240th Quartermaster Battalion, Fort Lee, VA on 5 January 1996. 5. The applicant reenlisted in the Regular Army on 21 February 1997. 6. Court-martial charges were preferred against the applicant on 3 June 1997 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * willfully and wrongfully damaging, by prying against them with a screwdriver, six windows and one door at the Fort Lee Golf Course Pro Shop, on or about 19 April 1997, in the sum of about $242.78, property of the U.S. Government * stealing a set of golf clubs and a golf bag, on or about 19 April 1997, a value of about $1,295.00, the property of the U.S. Government * unlawfully entering the Fort Lee Golf Course Pro Shot, the property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny, therein, on or about 19 April 1997 7. The applicant consulted with legal counsel on or about 21 July 1997. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, 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 he could submit any statements he desired in his own behalf. He elected to submit a statement, in which he recognized the serious nature of the charges that had been referred against him, and while there was no excuse for his actions, he asked that his family situation and deep remorse be considered. He described his family situation and he requested that his request for discharge be approved so he could begin a new life without the additional burden of a federal conviction and possible jail time. 8. The separation authority approved the applicant's request for discharge on 4 August 1997, directed his reduction to the lowest enlisted grade, and directed that his service be characterized as UOTHC. 9. The applicant was discharged on 15 August 1997, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 10. 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. 11. Army Regulation 635-200, in affect at that time, set forth the policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of enlisted members for a variety of reasons. 12. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board discussed the nature and severity of the misconduct, the applicant’s statement, his previous period of honorable service and whether to apply clemency. The Board found there was insufficient evidence of mitigating factors for the misconduct and the applicant provided no evidence of post-service accomplishments or letters of support for clemency consideration. The Board determined that the character of service the applicant received was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board determined that relief was not warranted. 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. 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 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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 states 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 would normally be furnished to an individual who was discharged for the good of the service. 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. ABCMR Record of Proceedings (cont) AR20190002127 5 1