ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20190005287 APPLICANT REQUESTS: The applicant 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) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 he requests an upgrade of his discharge to honorable, so he can qualify for Veterans’ Administration Benefits. 3. On 26 May 1982, he enlisted in the Regular Army for a period of 3 years. 4. His record shows on: * 15 June 1983, he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniformed Code of Military Justice for wrongfully possessing marijuana * 15 November 1985, he received NJP for disrespecting a noncommissioned officer 5. Headquarters, 2d Armored Division Orders 75-7 reduced the applicant from the rank and pay grade of sergeant/E-5 to private/E-1 effective 9 April 1990. 6. A memorandum issued by Headquarters, III Corps and Fort Hood, Subject: A Warning Against Reentering the Military Reservation shows the applicant was discharged from the U.S. Army pursuant to Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service-in lieu of court- martial. 7. On 20 April 1990, the DD Form 214 he was issued shows the applicant was discharged under the provisions of Chapter 10, AR 635-200 for the good of the service in lieu of court-martial, under other than honorable conditions. He completed 7 years, 10 months, and 25 days of net active service. He was awarded or authorized the: * Army Achievement Medal (3rd award) * Army Good Conduct Medal (2nd award) * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Qualification Badge with Rifle and Grenade Bar * Driver and Mechanic Badge 8. On or about 18 June 1993, the applicant submitted a request to the Army Board for Correction of Military Records (ABCMR) requesting an upgraded of his discharge. It was returned without action because he had not submitted a request to the Army Discharge Review Board. 9. The Board notes, the complete facts and circumstances surrounding the applicant’s discharge are not available. His discharge packet was not contained in his record; nevertheless, his DD Form 214 provided the separation authority and narrative reason for his discharge. 10. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. This regulation states the ABCMR is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 11. Army Regulation 635-200 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 12. In regards to the applicant requesting an upgrade so that he may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition, service record, and statements in light of the published guidance on equity, injustice, or clemency." BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DOD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, the frequency and nature of his misconduct, the absence of a separation packet and whether to apply clemency. The Board found insufficient evidence of in-service mitigation and the applicant provided no post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence to determine that the character of service the applicant received at discharge was in error or unjust. 2. After reviewing the application and all supporting documents, the Board found 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. 8/5/2019 X CHAIRPERSON 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. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. This regulation states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 4. 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 on the basis of 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.