IN THE CASE OF: BOARD DATE: 6 April 2020 DOCKET NUMBER: AR20190012002 APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to either an honorable discharge or a medical discharge based on alcoholism. 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 3 September 2019, with self- authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 February 1986 * memo to applicant from the Army Review Board Agency, Arlington, VA dated 28 December 2018 * letter to applicant from Baystate Health, Springfield, MA dated 18 February 2019 * personal notes 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, in effect: a. He was suffering from alcoholism for a considerable time during his offense. He had no counseling and rehabilitation was never discussed by his superiors. He has 20 years of continuous sobriety in his Veterans Administration (VA) alcoholic anonymous group. He admits to engaging in unbecoming behavior during his active service at Fort Stewart, GA. He does not recall the actions that he carried out due to his alcoholism. He would replace his assigned equipment with beer and wine, which he would share with his squad leaders. He was given erroneous support by his superiors with false character allegations. Upon his discharge, he engaged in drinking more and later entered a detox facility and other recovery programs. His last drink was on Thanksgiving Day of 1997. He helps his community by helping other alcoholics in recovery. b. He wants the injustice to be corrected for the failure of him not being offered counseling, detox, and other recovery tools. His alcohol addiction and black outs were never addressed and were never considered during his discharge proceedings. He attended a 28 day program and was back to being a useful member in his community. The military should have given him the tools for recovery, he would have been beneficial to both the military and the civilian community. c. His case was assigned to a post Judge Advocate General (JAG) officer who simply instructed him to sign the paper and go home instead of jail. He feels this was not the right legal representation in contrast to the constitution. He loves his country still today and would defend it against all enemies. He was young, impressionable, and naïve; he can neither deny nor confirm the events that caused his discharge. He needed help from the military and instead they just swept it under the rug. He loves God, his family, and his country and humbly requests his case be considered. He has made an effort in obtaining and attaching documentation from the inpatient recovery facility he attended along with personal notes and correspondence. 3. The applicant enlisted in the Regular Army on 26 July 1984. 4. Court-martial charges were preferred against the applicant on 4 December 1985 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * stealing five American Express Travelers Check, of a value of about $100.00 , the property of Private E-2 Dxxxxx J. Axxxxxx II, on or about 20 October 1985 * falsely make in its entirety the signature of Private E-2 A II to countersign five American Express Travelers checks, with the intent of defraud, on or about 20 October 1985 5. The applicant consulted with legal counsel on or about 12 December 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 an 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, in lieu of 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 elected to submit a statement in his own behalf, wherein he requested that his discharge be approved and he be issued a General Discharge Certificate based on his prior duty performance. He worked hard at his job during the previous 17 months of service in the Army. He realized he made a serious and selfish mistake that he will regret the rest of his life. He apologized to all concerned for his involvement in this offense. He asked the board to consider his prior job performance and remorse when determining whether to grant him a discharge and the character of that discharge. 6. The separation authority approved the applicant's request for discharge on 22 January 1986, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and further directed his reduction to private/E-1 and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 7. The applicant was discharged on 10 February 1986, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 8. The applicant was charged due to the commission of an offense 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. 9. The applicant's record is void of evidence that substantiates his contentions regarding his alcoholism. 10. The applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) on 2 July 1986, which amending item 27 (Reenlistment Code) by correcting his "RE-4" entry to "RE-3." 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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, charges preferred, his request for discharge and the reason for his separation.. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no documented evidence of post-service achievements or letters of support to weigh 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. 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. 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 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in pertinent part, 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 is normally considered appropriate. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012002 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012002 6 ABCMR Record of Proceedings (cont) AR20190012002 5