ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20190005969 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, and the issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his first period of honorable service from 4 September 1979 through 16 June 1983. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 22 April 2019 * DA Form 2-1 (Personnel Qualification Record – Part II), dated 7 September 1979 * certificates and orders for training, promotion, appreciation, merit, achievement, and awards, dated between December 1979 and November 1985 * DD Form 256A (Honorable Discharge Certificate), dated 16 June 1983 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 6 January 1986 * a personal statement, prepared in 1993 * Army Discharge Review Board (ADRB) notification letter, dated 10 February 1994 * National Personnel Records Center (NPRC) letter, dated 10 Apr 2019 * County Veterans Service Office (VSO) letter, dated 22 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 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 should have been granted and awarded a DD Form 214 for his first period of enlistment. He reenlisted while on 16 June 1983, with no break in service, and the Army did not provide him with a DD Form 214 for his first term of service. 3. The applicant enlisted in the Regular Army on 4 September 1979. He completed training as a light wheeled vehicle mechanic and was promoted through the ranks to specialist four/E-4. 4. The applicant reenlisted in the Regular Army on 17 June 1983. He was promoted to the rank/grade of sergeant/E-5 effective 3 October 1984. 5. Court-martial charges were preferred against the applicant on 4 October 1985 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with the following offenses: CHARGE: 1 – VIOLATION OF THE UCMJ, ARTICLE 121 SPECIFICATION 1: On or about 14 April 1985, stealing a toaster oven, a portable vacuum cleaner, a Panasonic brand AM/FM stereo with two speakers, two gas propane tanks, one gallon of paint, one scissors jack, and one bumper jack, a total value in excess of $100.00, impounded property of another in the possession of the. United States. SPECIFICATION 2: On or about 21 April 1985, stealing a tool box containing various tools, an extension cord, an AM/FM stereo cassette deck, a tachometer; and an ice chest, of a total value in excess of $100. 00, impounded property of another in the possession of the United States. SPECIFICATION 3: ·On about 28 April 1985; stealing two hydraulic jacks and two Western Auto brand tires, of a total value in excess of $100.00, impounded property of another in the possession of the United States. SPECIFICATION 4: On or about 16 June 1985, stealing four tires, of a total value in excess of $100.00, impounded property of another in the possession of the United States. SPECIFICATION 5: On or about 16 June 1985, stealing two stereo speakers, one stereo equalizer, and two tires, of a total value in excess of $100.00, the impounded property of another in the possession of the United States. CHARGE II – VIOLATION OF THE UCMJ, ARTICLE 81 SPECIFICATION 1: On or about 9 April 1985, conspiring with two other Soldiers to commit offenses under the UCMJ, to wit: unlawfully entering the Military Police Impoundment Lot, Fort Stewart, Georgia, unlawfully entering various motor vehicles within the said lot, and committing larceny therein of various impounded property of a total value in excess of $100.00, and in order to effect the object of the said conspiracy, he and the two other Soldiers did, on or about 14 April 1985, unlawfully enter the Military Police Impoundment Lot, Fort Stewart, Georgia, unlawfully enter various motor vehicles within the said lot, and steal, a toaster oven, a portable vacuum cleaner, a Panasonic brand AM/FM stereo with two speakers, two gas propane tanks, one gallon of paint, one scissors jack, and one bumper jack of a total value in excess of $100.00, the impounded property of another in the possession of the United States. SPECIFICATION 2: On or about 21 April 1985, conspiring with two other Soldiers to commit offenses under the UCMJ, to wit: unlawfully entering the Military Police Impoundment Lot, Fort Stewart, Georgia, unlawfully entering various motor vehicles within the said lot, and committing larceny therein of various impounded items of a total value in excess of $100.00, and in order to effect the object of the said conspiracy, he and the two other Soldiers did, on or about 21 April 1985, unlawfully enter the Military Police Impoundment Lot, Fort Stewart, Georgia, and unlawfully enter various motor vehicles within the said lot, and steal a tool box containing various tools, an extension cord, an AM/FM cassette deck, a tachometer, and an ice chest, of a total value in excess of $100.00, the impounded property of another in the possession of the United States. SPECIFICATION 3: On or about 28 April 1985, conspiring with two other Soldiers to commit offenses under the UCMJ, to wit: unlawfully entering the Military Police Impoundment Lot, Fort Stewart, Georgia, unlawfully entering various motor vehicles within the said lot, and committing larceny therein of two hydraulic jacks and two Western Auto brand tires, of a total value in excess of $100.00, and in order to effect the object of the said conspiracy, he and the two other Soldiers did, on or about 28 April 1985, unlawfully enter the Military Police Impoundment Lot, Fort Stewart, Georgia, and steal two hydraulic jacks, of a total value in excess of $100.00, the impounded property of another in the possession of the United States. SPECIFICATION 4: On or about 28 April 1985, conspiring with another Soldier to commit offenses under the UCMJ, to wit: unlawfully entering the Military Impoundment Lot, Fort Stewart, Georgia, unlawfully entering various motor vehicles within the said lot, and committing larceny therein of various items, of a total value in excess of $100.00, and in order to effect the object of the said conspiracy, he and the other Soldier did, on or about 28 April 1985, unlawfully enter the Military Police Impoundment Lot, Fort Stewart, Georgia, and steal various items and four wheels of a total value in excess of $100.00, the impounded property of another in the possession of the United States. CHARGE III – VIOLATION OF THE UCMJ, ARTICLE 80 SPECIFICATION 1: On or about 16 June 1985, attempting to steal two chrome wheel rims, of a total value of more than $100.00, impounded property of another in the possession of the United States. SPECIFICATION 2: On or about 16 June 1985, attempting to steal two stereo speakers, of a total value of about $100.00, impounded property of another in the possession of the United States. CHARGE IV: VIOLATION OF THE UCMJ, ARTICLE 130 SPECIFICATION: On or about 14 April 1985, unlawfully entering a Shasta Camper Trailer, an impounded mobile home in the possession of the United States, with intent to commit a criminal offense, to wit: larceny, therein. 6. The applicant consulted with legal counsel on 7 November 1985. 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 a 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 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 shows he did not make an election. However, he did submit a statement in which he contended that all of the items that he personally removed from the vehicles in the impound lot had been recovered were in the possession of the military police. He offered to pay for the losses of property suffered as a result of others actions because to his understanding, none of those other Soldiers were in a position to be tried for their offenses. The offer to pay for the losses of property was to alleviate whatever hardships had been created by his actions. He provided the Sole support for his wife and daughter as well as paying child support for two children from a previous marriage and if he were to be convicted and sentenced to confinement, it would leave his wife and daughter without any means of support and seriously impact his legal obligations to his other dependents. He had never received any Articles 15, letters of reprimand, or any other disciplinary actions. His conduct and performance were always above standards and he accomplished all tasks in a professional manner. 7. The separation authority approved the applicant's request for discharge on 16 December 1985 and directed his reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 8. The applicant was discharged on 6 January 1986, 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 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. a. Item 12c (Record of Service – Net Active Service This Period) erroneously shows he completed six years, four months, and "093" days of net active service. b. Item 18 (Remarks) of his DD Form 214 contains the entry "immediate reenlistment: 790904 to 930616." 9. The applicant was charged due to the commission of offenses punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel 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. 10. The Army Discharge Review Board denied the applicant's request for a change of his reason for discharge and characterization of service. 11. The applicant provides copies of certificates and orders for training, promotion, appreciation, merit, achievement, and awards. He provides a copy of his Honorable Discharge Certificate dated 16 June 1983 and a personal statement that lists some of the awards he received while in the Army and references his life before, during, and after his service in the Army. 12. The Board should consider the applicant's statement in accordance 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 discharge upgrade requests. The Board considered his statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation for his misconduct and 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 determined that the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the corrections stated in the Administrative Note(s) below. 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, with the exception of the corrections stated in the Administrative Note(s) that follow, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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 (Certificate of Release or Discharge from Active Duty), for the period ending 6 January 1986, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by showing in item 12.c. (Net Active Service This Period) he completed six years, four months, and three days of net active service this period, and by adding the following entries to item 18: * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790904 UNTIL 830616 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 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing the DD Form 214. The regulation states the amount of service this period, computed by subtracting item 12.a. from 12.b. will be entered in item 12.c. Lost time under Title 10, U.S. Code 972 and non-creditable time after expiration term of service, if any, are deducted. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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 states 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 discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service. 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. ABCMR Record of Proceedings (cont) AR20190005969 7 1