ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20190003805 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20120006562 on 11 October 2012. Specifically, he requests an upgrade of his under other than honorable conditions (UOTHC) 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), dated 15 January 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120006562 on 11 October 2012. 2. As a new argument, the applicant states he served this country and has suffered enough, his discharge should be upgraded. 3. The applicant enlisted in the Regular Army on 7 September 1988. 4. Court-martial charges were preferred against the applicant on 2 February 1991 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with disrespecting a commissioned officer, disobeying a lawful order, and wrongfully using provoking words (each instance occurring while he was deployed to Saudi Arabia in support of Operations Desert Shield and Desert Storm. 5. The applicant consulted with counsel on 3 February 1991. 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 he could submit any statements he desired in his own behalf. His election shows he did not intend to submit a statement in his behalf. 6. Consistent with the recommendations of the chain of command, the separation authority approved the applicant's request for discharge on 5 February 1991, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of trial by court-martial. 7. The applicant was discharged 13 February 1991, 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 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as UOTHC. 8. The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance. BOARD DISCUSSION: 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 two Board members determined there is sufficient evidence to grant relief and amend ABCMR's decision in Docket Number AR20120006562 on 11 October 2012. The majority found that because the applicant had made a good faith effort to identify as a Muslim conscientious objector and was denied well after deploying, had earned a personal medal, had served honorably for most of his time in service, and had wartime service, the discharge characterization was too harsh for the one incident of misconduct. The dissenting Board member voted to deny relief stating that the applicant had ample time and opportunity to provide documentation to support his conscientious status to his chain of command and the applicant had not submitted new evidence since the ABCMR had denied his request in 2012. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : : 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 “91-02-13” showing his characterization of service as “General Under Honorable Conditions,” the narrative reason as “Miscellaneous/General Reasons,” the separation code (SPD) as “JND”, and Authority as “AR 635-200, para 5-14.” 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, U.S. Code, 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, in effect at the time, set 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. c. 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, a UOTHC discharge is normally considered appropriate. 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) AR20190003805 4 1