ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20190006321 APPLICANT REQUESTS: * Upgrade of his under other than honorable conditions discharge to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, he served honorably during his first enlistment term and qualified for reenlistment. His leadership forced him to accept an under other than honorable conditions discharge due to his error in judgment; they led him to believe he would never survive the outcome of a court-martial, and that it was futile for him to argue his case. As a result, he believed a trial would result in his incarceration or a dishonorable discharge. Since his discharge, he has led a wonderful life; he has been a productive member of society and has raised a wonderful family. 3. The applicant's service records show: a. He enlisted into the Regular Army for a 4-year term on 29 November 1985. After completing advanced individual training for military occupational specialty 55D (Explosive Ordnance Disposal (EOD) Specialist), orders assigned him to Fort Polk, LA; he arrived on or about 10 June 1986. Effective 1 April 1989, his chain of command promoted him to sergeant (SGT)/E-5. b. On 24 July 1989, he immediately reenlisted for 4 years; as part of his reenlistment, he requested reassignment to Fort Sam Houston, TX; he arrived at Fort Sam Houston on 15 November 1989. c. On 20 February 1990, his chain of command awarded him the Army Commendation Medal for meritorious achievement while managing his unit's security program, conducting the unit's in-service recruiting program, and for the applicant's participation in more than 50 conventional EOD incidents. d. On 31 May 1990, his commander issued him a letter of reprimand for misusing his government issued Diners Club credit card to purchase a personal computer on 3 March 1990. The personal computer was subsequently stolen and the U.S. Army Criminal Investigation Command (CID) conducted an investigation into its theft. Although the applicant told his commander he was unaware he could not use the government credit card for personal purchases, the applicant later signed a sworn statement for CID in which he acknowledged he had knowingly violated his government credit card agreement. e. On 16 July 1990, his commander issued him a second letter of reprimand for violating Title 18, U.S. Code, section 287 (False, Fictitious, or Fraudulent Claims) by submitting fraudulent travel vouchers on 20 February and 15 March 1990. In addition to fraudulently receiving reimbursements to which he was not entitled, the applicant also used his government rental car for his personal use; he then claimed the additional rental cost as official business. f. On 7 August 1991, the CID issued its final report of investigation in which the applicant was titled for making a false official statement, making a false claim, violating a general regulation (Army Regulation (AR) 50-5 (Nuclear Surety), and violating a lawful order. In the report's synopsis, CID wrote: (1) The applicant stated, on 22 March 1991, he had turned in the rental car he had used for official business; CID learned he actually turned in the car on 24 March 1991. (2) In or around May 1991, the applicant knowingly altered a hotel receipt and a car rental invoice to reflect he had paid cash; he had actually used his government credit card for both. On 13 May 1991, the applicant filed the falsified receipts as part of a claim for travel reimbursement. On 3 June 1991, the applicant submitted a supplemental travel claim that itemized his fuel costs. He claimed $49.98 in fuel and asserted he had lost his receipts; his Diners Club government credit card statement showed he only paid $47.61 for fuel. (3) On 10 June 1991, the applicant made a false written statement to his unit commander. Although the applicant advised his commander he had applied for a personal Diners Club credit card, he had actually applied for the card on a U.S. government Diners Club application, and then personally processed the application through the command's Directorate of Resource Management. (4) CID's investigation further showed the applicant had used his government credit card for personal purchases on numerous occasions. Following consultation with the Staff Judge Advocate's officer, the CID showed they had sufficient evidence to show the applicant had violated the following Articles of the Uniform Code of Military Justice (UCMJ): * Article 92 (Violation of a Lawful General Article) * Article 107 (False Official Statement) * Article 121 (Larceny) * Article 132 (Making a False Claim) g. On 19 August 1991, the applicant's commander initiated a bar to reenlistment action against him, based on the UCMJ violations listed on the CID report. (1) The applicant provided a rebuttal wherein he stated the unsuitability statements made by CID were only speculation; with the exception of his alleged violation of a lawful order, no charges had been filed. He acknowledged the seriousness of the allegations, and maintained the Army was very important to him and his family. (2) On 28 August 1991, the battalion commander approved the bar to reenlistment. h. On 26 February 1992, the applicant's commander completed a DA Form 4833 (Commander's Report of Disciplinary or Administrative Action); he reported, with regard to the UCMJ violations outlined in the above-cited CID report, the applicant's leadership was discharging him per chapter 10 (Discharge for the Good of the Service), AR 635-200 (Personnel Separations – Enlisted Personnel). i. The applicant's service records are void of documents pertaining to his discharge, but does include orders reducing him from SGT/E-5 to private/E-1 to PV1, effective 26 February 1992; the authority is paragraph 6-11 (Approved for Discharge from Service Under Other Than Honorable Conditions), AR 600-200 (Enlisted Personnel Management System). His service record also contains a DD Form 214 (Certificate of Release or Discharge from Active Duty), which shows, on 6 March 1992, he was discharged under other than honorable conditions. The separation authority is chapter 10, AR 635-200. The DD Form 214 further reflects he had continuous honorable service from 29 November 1985 through 23 July 1989. He was awarded or authorized: * Army Service Ribbon * Army Good Conduct Medal (1st Award) * Army Commendation Medal * Noncommissioned Officer Professional Development Ribbon * Senior EOD Badge * Driver and Mechanic Badge * National Defense Service Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 4. AR 15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 5. The absence of the applicant's separation packet means we are unable to determine the specific circumstance(s) that led to his discharge; however, despite the unavailability of the applicant's separation packet, and in light of the record copy of his DD Form 214, the Board presumes the applicant's leadership completed his separation properly. a. Soldiers charged with UCMJ violations that carried a punitive discharge as a punishment could request separation under chapter 10, AR 635-200; such requests were voluntary and offered in-lieu of trial by court-martial. b. Per the Manual for Courts-Martial, United States, 1984, Appendix 12 (Maximum Punishment Chart), a punitive discharge was among the maximum punishments for the UCMJ violations of Articles 92, 107, 121, and 132. 6. The applicant maintains his first term of service was honorable and essentially asserts he was forced to accept an under other than honorable conditions discharge after being misled as to the possible outcomes of a court-martial conviction. Since his discharge, he has been a productive member of society. In reaching its determination, the Board can consider the applicant's petition, his service record, and his 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, his record of service, the frequency and nature of his misconduct, the bar to reenlistment, the reason for his separation, the absence of a separation packet and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for his misconduct and the applicant provided no evidence in support of his statement regarding past-service achievements and no letters of reference in support of a clemency determination. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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. 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b General Discharge) stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who had committed 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 at any time after the charges were preferred. The request had to include the Soldier's admission of guilt. 3. The Manual for Courts-Martial, United States, 1984, Appendix 12 (Maximum Punishment Chart) showed the maximum punishment included a punitive discharge for the following UCMJ violations: * Article 92 (Violation of a Lawful General Article) * Article 107 (False Official Statement) * Article 121 (Larceny) * Article 132 (Making a False Claim) 4. AR 600-200, in effect at the time, prescribed policies and procedures for enlisted personnel management. Paragraph 6-11 stated Soldiers approved for an under other than honorable conditions discharge were required to be to the lowest enlisted grade. 5. AR 50-5, in effect at the time, prescribed the policies that pertained to the Personnel Reliability Program. To be retained in this program, Soldiers had to meet specific standards of loyalty, integrity, and trustworthiness. A reason for disqualification included violations of the UCMJ. 6. 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. 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. 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. 7. AR 15-185 (ABCMR), states: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity; this means the Board presumes what the Army did was correct. b. An applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. ABCMR Record of Proceedings (cont) AR20190006321 6 1