ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 June 2019 DOCKET NUMBER: AR20190002152 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 Review of Discharge or Dismissal from the Armed Forces of the United States) * DA Forms 4980-18 (Army Achievement Medal (AAM) Certificate), dated 19 October 1985, 27 October 1987, and 1 November 1988 * Certificate of Merit for Safety, dated 28 September 1989 * Certificate of Appreciation, dated 3 April 1990 * DA Form 4980-5 (Bronze Star Medal (BSM) Certificate), dated 20 June 1991 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 13 July 1992 * character reference letter, undated 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 an honorable discharge based on his service record and accomplishments. There hasn’t been a day since being discharged that he hasn’t regretted the gross error in his judgement that led to his separation from service. The young man that committed that act is long gone and all that is left is this grateful veteran. This discharge is requested for health reasons. Please take into account his entire service and do not let him be defined by one incident. 3. The applicant enlisted in the Regular Army on 23 March 1984 and reenlisted on 29 July 1988. 4. Court-martial charges were preferred against the applicant on 9 June 1992, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with wrongful use of cocaine between on or about 23 January 1992 and on or about 30 January 1992. 5. The applicant consulted with legal counsel on or about 22 June 1992. 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 UOTHC 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 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 elected to submit a statement in his own behalf; wherein, he requested a general discharge based on his record and achievements. 6. The separation authority approved the applicant's request for discharge, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of court-martial, and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 7. The applicant was discharged on 13 July 1992, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service. The DD Form 214 he was issued confirms his service was characterized as UOTHC. 8. The applicant provides a character reference letter from his former first sergeant, which was provided with his request for discharge. 9. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, in addition to the administrative notes below the signature block, the Board majority determined that there is sufficient evidence to grant partial relief to upgrade the applicant’s discharge characterization to general under honorable conditions.. All board members applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and two Board members found the statement and evidence of honorable prior service achievements to be compelling. The two Board members agreed that the applicant’s case warrants clemency in that the applicant served honorably in combat and his Bronze Star Medal and other personal meritorious awards indicate honorable service to partially mitigate the misconduct resulting in the discharge characterization. The dissenting Board member determined that because the applicant was a non-commissioned officer at the time, he had adequate training and experience necessary to avoid conducting misconduct and was entrusted to set the example for subordinate Soldiers to emulate, and therefore, the discharge characterization was proper and fitting for the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : XXX :XXX : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: In addition to the administrative notes below the signature block, the Board determined there is sufficient evidence 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 by amending the discharge characterization of service on his DD Form 214 to “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): A review of the applicant's record shows his DD Form 214, for the period ending 13 July 1992, 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 840323 UNTIL 880728 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 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes the standardized policy for preparing and distributing the DD Form 214. It states the DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. a. Paragraph 1-4b(5) of the regulation in effect at the time stated that a DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate reenlistment in the Regular Army. b. Paragraph 2-4h(18) of the regulation currently in effect states that item 18 documents the remarks that are pertinent to the proper accounting of the separating Soldier's period of service. Subparagraph (c) states that for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates. For Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." Then, enter the specific periods of reenlistments as prescribed above. c. Since 1 October 1979, military personnel discharged for the purpose of immediate reenlistment are no longer issued a separate DD Form 214. 3. 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. 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// ABCMR Record of Proceedings (cont) AR20190002152 5 1