ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  25 July 2019 DOCKET NUMBER:  AR20190005345 


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 10 April 2019



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 he was told at his court-martial he would be separated with ageneral discharge.

3.The applicant enlisted in the Regular Army on 13 March 1985.

4.A U.S. Army Criminal Investigation Command (CID) report, dated 7 July 1987 with59 pages of supporting documents, found sufficient evidence that the applicantcommitted the offences of burglary, indecent assault, and assault to refer the issue tothe court-martial authority.

5.In her recommendation for the processing of the court-martial, dated 22 July 1987,the applicant's unit commander noted that the applicant had previously been foundguilty of the charge of larceny by a special court-martial.  She recommended that he betried by a special court-martial but if a request for discharge in lieu of court-martial wassubmitted, she recommended it be accepted.

6.Court-martial charges were preferred against the applicant on 22 July 1987, forviolations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (ChargeSheet) shows he was charged with:

.assault, on or about 25 January 1987

.unlawful breaking and entering with intent to commit a sexual assault, on orabout 25 January 1987

.indecent assault, on or about 25 January 1987

.willfully disobeying a lawful order, on or about 1 July 1987



7.The applicant consulted with legal counsel on 3 August 1987.

a.He was advised of the basis for the contemplated trial by court-martial, themaximum 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 requesteddischarge 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 request for discharge indicates he declined to submit a statement in his own behalf. 

8.The separation authority approved the applicant's request for discharge under theprovisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, anddirected that the applicant be reduced to the lowest enlisted grade and dischargedUOTHC.

9.The applicant was discharged on 15 September 1987, under the provisions of ArmyRegulation 635-200, Chapter 10, for the good of the service, and his servicecharacterization was UOTHC.  His DD Form 214 further shows he was discharged inthe lowest enlisted grade.

10.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel 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.The Board should consider the applicant's statement and the evidence of record inaccordance with the published equity, injustice, or clemency determination guidance.BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards for consideration of discharge upgrade requests to the completeevidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity.  The Board found insufficient evidence of in-service mitigation for the misconduct; the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.  Based on a preponderance of evidence, the Board found that the applicant’s dischargecharacterization properly reflects the seriousness of his misconduct and was not in error or unjust.BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX 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. 


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, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

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

a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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 Armyunder honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 

c.Chapter 10 provides that a member who has committed an offense or offensesfor 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 UOTHC is normally considered appropriate. 

4.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 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. 
 
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