ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:    BOARD DATE:  10 October 2019 DOCKET NUMBER:  AR20190003983 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 21 January 2019

.an undated, self-authored letter to "Whom it May Concern"

.three letters of recommendation from an Army retiree and a civilian firefighterattesting to the applicant's good character and post-service conduct



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states his discharge should be upgraded based on equity.  He hasbeen out of the Army for 10 years and he would like to have the opportunity to serve hiscountry again.  In an attached, self-authored letter, he further contends:

a.He said goodbye to his family; they were blissfully unaware that he had joined theArmy during the Iraq surge and was actually going to war.  He got into an altercation trying to protect his younger sister and was subsequently arrested for aggravated assault with a deadly weapon.  He posted bail and was immediately returned to Fort Benning. 

b.While going through the process of trying to mitigate his potential civilianpunishment, he learned that his military career was ruined.  To be a Soldier he must utilize weapons; as he would be on probation, he would not be able to do his job.  He was devastated.  He proceeded to make some decisions that would dig a deeper hole. 

c.In trying to cope with everything that was happening to him, he started drinkingand eventually turned to using illegal substances to block out all the negative things that were happening to him.  He does not justify it and he does not condone it.  The decisions he made were due to extremely poor judgment; he not only brought shame upon himself but also his brothers, his unit, his country, and those individuals that earned their place in history as some of the bravest men to walk this Earth.  He regrets his decisions every day and although he cannot go back in time and change them, he is hoping that he may have the chance to do it right a second time around.   

d.Every day since he has been out of the Army, he has wanted to re-enlist.  He hastalked to countless recruiters and all have told him it was impossible.  He recently talked to a recruiter in his home town that informed him that if he could get his discharge upgraded, he may have a chance to serve his country again.  

e.He is 33 years old, he has a wife and kids, and he knows more about sacrificeand service than he did in his 20s.  He knows that if he fails, "they fail."  He has grown and changed tremendously in the last 10 years.  He has found God and He has led him in a wonderful direction.  He has done lots of volunteering but today, he throws himself on the mercy of the Board and he prays that it will help him get the chance to right the wrongs he committed in his youth.  He is not that same person from years ago and he wants to prove that he can be the Soldier that he knows he can be.  He wants to undo the shame he has brought upon his unit, its heroes, and his country. 

3.The applicant enlisted in the Regular Army on 21 February 2007.  He completedtraining as a cannon crewmember.

4.The applicant's commander notified the applicant that actions to separation him fromthe Army had been initiated under the provisions of Army Regulation 635-200 (ActiveDuty Enlisted Administrative Separations), paragraph 14-12c (2), for commission of aserious offense.  As a basis for his recommendation, his commander cited theapplicant's assault upon another individual by cutting her with a dangerous weaponlikely to produce death or grievous bodily harm, on or about 9 December 2008; hiswrongful communication of a threat to an individual; and his positive test result forcocaine, on or about 29 September 2008.  The applicant acknowledge receipt of thenotification, consulted with counsel, and made an election not to submit a statement inhis own behalf.

5.Before a summary court-martial on or about 17 November 2008, the applicant wasconvicted of wrongfully using cocaine between on or about 27 September 2008 and onor about 29 September 2008.

6.The applicant's commander formally recommended his separation from serviceunder the provisions of Army Regulation 635-200, paragraph 14-12c, by reason ofmisconduct – commission of a serious offense.
7.The separation authority approved the recommended discharge under the provisionsof Army Regulation 635-200, paragraph 14-12c, and directed that his service becharacterized as UOTHC.

8.The applicant was discharged on 22 December 2008, under the provisions of ArmyRegulation 635-200, paragraph 14-12c, due to misconduct – commission of a seriousoffense.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) hewas issued confirms his service was characterized as UOTHC.

9.The Army Discharge Review Board determined that the applicant's character ofservice and reason for separation were proper and equitable on 29 April 2011.

10.The applicant provides three letters of recommendation from individuals attesting tohis good character and post-service conduct.

11.The Board should consider the applicant's provided evidence and statement inaccordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION: 



1.The Board carefully considered the applicant's request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests.  The Board considered the applicant's statement, his record ofservice, the frequency and nature of his misconduct and the reason for his separation.The Board noted that the applicant was discharged by reason of "Misconduct –Commission of a Serious Offense” under Army Regulation 635-200 which authorizesissuance of an under other than honorable discharge in 2008.  The Board noted that theapplicant committed serious offenses of conviction of aggravated assault with a deadlyweapon, making wrongful communication of a threat to an individual, and conviction bycourt-martial of wrongfully using cocaine all within one year.  Based on this serious ofserious offenses, the separation authority directed a discharge under other thanhonorable conditions in accordance with regulation.  The Board found this to beequitable under the circumstances.2.The Board found insufficient evidence of in-service mitigation for the misconduct. TheBoard considered the applicant’s statement that he has grown and changedtremendously in the last 10 years, has a family, has found God, and does volunteering.The Board also noted the character references that the applicant provided.  Theapplicant’s post service conduct is in keeping with that expected of a good citizen of theUnited States but does not mitigate the seriousness of the misconduct that resulted inhis discharge from the Army.  The Board found the evidence provided insufficient tosupport a clemency determination.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

After review of the application and all evidence, the Board found no error or injustice in the applicant’s under other than honorable discharge and agreed that it was proper and equitable considering the circumstances. 



X 


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. 

REFERENCES: 

1.Title 10, U.S. Code, Section 1552(b), provides that applications for correction ofmilitary records must be filed within three years after discovery of the alleged error orinjustice.  This provision of law also allows the ABCMR to excuse an applicant's failureto timely file within the three-year statute of limitations if the ABCMR determines it wouldbe in the interest of justice to do so.

2.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.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 14 establishes policy and prescribes procedures for separating membersfor misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 

3.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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. 

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