BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20190012740 APPLICANT REQUESTS: The applicant requests an upgrade of his Chapter 10, under conditions other than honorable (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Self-written statement 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: a. He requests a review of his record to upgrade his discharge to at least a general discharge. He had a good service period until this time and he did not consider the consequences. He does not believe he was treated fairly due to all the circumstances involved. b. He would like to say that he was not driving the jeep, but he was the one who had access to it. They (private first class R___, specialist four V___, and the applicant took a jeep from the motor-pool (unauthorized) and proceeded to the “EM” Club where they got drunk and PFC R___ wrecked the jeep on the way back to the motor-pool. Luckily, none of them were hurt. c. When they got back to Bamberg, the Battalion Commander called all three of them to his office and offered them a choice of taking a court-martial or an UOTHC discharge and going home. He just wants to say that he was young and was not thinking about the future when all this happened. He had a serious drug and alcohol addiction. He received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) at Fort Knox, KY for smoking pot in the barracks. He was a good Soldier. d. He thinks that his performance record will show that. He passed all of his physicals and only missed one question on his SQT (skill qualification test) test in Bamberg, Germany. He never missed any formation. If he had known then what he knows now, he would have taken the court-martial and finished his enlistment. He is asking for the Board to show some mercy for a young man that has learned to think things through before acting upon them and to consider reviewing his discharge to at least a general discharge. 3. On 14 February 1980, the applicant enlisted in the Regular Army for a period of 4 years. 4. His record shows on two separate occasions he accepted NJP under the provisions of Article 15 of the UCMJ for failing to be at his appointed place of duty and wrongfully possessing marijuana. He did not appeal. 5. On 20 June 1982, in sworn statements: a. The applicant stated, on or about 20 June 1982, he was enroute to B Company, 1/54th “MPA” when the vehicle he was driving flipped over and the next thing he knew his “TC” (truck commander) was pulling him out of the ditch. b. His commander stated in pertinent part, the vehicle that the applicant was driving, was not dispatched properly in accordance with the appropriate training manual. 6. On 8 July 1982, court-martial charges were preferred against the applicant for damaging a quarter-ton truck (property of the U.S. Government); recklessly driving at an excessive speed and causing a vehicle to flip over and land in a ditch; and wrongfully appropriating a quarter-ton truck. 7. On 16 July 1982, the applicant voluntarily requested to be discharged for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), Chapter 10. He consulted with legal counsel and was advised of his rights prior to competing this form. a. He was advised of the basis for his contemplated trial by court-martial, its effects, and the rights available to him. b. The applicant elected not to submit statements in his own behalf and did not desire a separation medical examination. c. His chain of command recommended approval of his request to be discharged. The separation authority approved the applicant’s request on 28 July 1982 and directed he be issued a UOTHC Discharge Certificate. 8. On 13 August 1982, the applicant was discharged accordingly. His DD Form 214 shows he was discharged “under conditions other than honorable” in accordance with Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial. He completed 2 years and 6 months of net active service. The applicant was not awarded a personal decoration. 9. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. 10. 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: 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, his request for discharge, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no 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 :MMB :MRB :DRA 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 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 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. 3. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012740 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012740 6 ABCMR Record of Proceedings (cont) AR20190012740 4