BOARD DATE: 2 March 2020 DOCKET NUMBER: AR20190014301 APPLICANT REQUESTS: The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to a general under honorable conditions or an honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application of Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Four Letters/Character References 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. During his time in the Armed Forces, he was never in any trouble. Even to this day, he still loves the military. His discharge was based on something he was accused of outside of the military and he had no control over. He never had a chance to explain it to anyone. He wishes he could have remained in the military and had a way of defending himself throughout the course of this matter. He has been on a straight path and would appreciate it if his request could be acknowledged and his discharge upgraded. b. He included character letters from people and family members who have known him, knows what type of person he is, and how much he loves the military. He is also in school to further his education. He is a proud father and he really needs this upgrade so that he could continue to improve and accomplish his goals. 3. On 3 August 1995, at the age of 18 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. After completing one station unit training (OSUT), on 16 February 1996, he was assigned to Fort Stewart, GA. 5. On 7 October 1996, the applicant went absent without leave (AWOL) and on 6 November 1996, he was dropped from the unit rolls. 6. On 10 April 1997, he was apprehended by civilian authorities and confined in the, on charges of distributing cocaine. On the same date he was restored to unit rolls. 7. On 2 June 1998, the applicant, pursuant to his plea of guilty, was convicted by civilian court of one charge of distribution of cocaine. He was sentenced to five years of hard labor under the supervision of the Department of Corrections. 8. On 26 August 1998, the immediate commander, notified the applicant via letter of his intent to separate him, under Army Regulation (AR) 635-200 (Personnel Separations– Enlisted Personnel), Chapter 14, paragraph 14-5, for misconduct, civil conviction. The letter advised the applicant that he may request a hearing before an administrative board, consult with counsel or request military counsel to represent him, submit a statement in his own behalf, and submit a conditional waiver, or he could waive the foregoing rights. 9. On 14 September 1998, the applicant affirmed he had been advised of the basis for the contemplated separation action and waived: consulting with counsel, consideration of his case by a board of officers, a personal appearance before the board, and representation by military counsel. He elected not to submit a statement in his own behalf and indicated that he did not intend to appeal his civilian conviction. 10. The intermediate commander recommended approval of the separation and on 21 October 1998, the appropriate separation authority approved the separation under AR 635-200, Chapter 14 and directed he be issued an Under Other Than Honorable Conditions Discharge Certificate and a letter barring the applicant from the installation. 11. On 13 November 1998, the applicant was discharged, accordingly. His service was characterized as UOTHC. He completed 2 years, 9 months, and 5 days, of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * Authority and Reason: AR 635-200, Chapter 14, Section II * He was awarded or authorized: * National Defense Service Medal * Army Service Ribbon * Dates of Time Lost During This Period: 19961007 – 19970410 (AWOL – 185; Civilian Confinement – 1 day) 12. His record is void of a separation medical examination and/or a mental status evaluation. 13. The applicant provides four letters/character references attesting to his character as a teacher, family member, coworker, and friend. 14. The applicant states his discharge was based on something he was accused of outside of the military and he had no control over. He never had a chance to explain it to anyone. He wishes he could have remained in the military and had a way of defending himself throughout the course of this matter. His record shows, he enlisted in at the age of 18 years old, he was convicted by civilian court for distributing cocaine and sentenced to five years hard labor, and he had 185 lost days due to being AWOL and 1 day due to civilian confinement. He served 2 years, 9 months, and 5 days of his 3- year contractual obligation. 15. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 16. AR 635-200, Section II (Conviction by Civil Court) states Soldiers who were initially convicted by a civil court were subject to discharge; the Soldier had to have been convicted of an offense for which a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial 1984, as amended, or the sentence by civil authorities included confinement for six months or more. According to the Manual for Courts-Martial 1984, as amended, Article 134 (Drugs, habit forming, wrongful possession, sale, transfer, use or introduction into a military unit, base, station, post, ship or aircraft) carried a maximum punishment of a punitive discharge of dishonorable. An under other than honorable conditions was normally furnished to Soldiers discharged under this provision. 17. 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, his civil conviction, his separation packet and the reason for his separation. The Board found insufficient evidence of in- service mitigation to overcome the serious misconduct. The Board considered the letters of reference he provided but found no additional no evidence of post-service achievements. The Board found this evidence insufficient to support 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. 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, 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 (AR) 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. b. A general discharge was a separation from the Army under honorable conditions, where the Soldier's military record was not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern misconduct, commission-of a serious offense, conviction by civil authorities, desertion, and absence without-leave. Section II (Conviction by Civil Court), states Soldiers who were initially convicted by a civil court or when action is taken tantamount to a finding of guilty were subject to discharge. An under other than honorable conditions was normally furnished to Soldiers discharged under this provision unless the particular circumstances of the case warrant an honorable or general discharge. (1) The Soldier had to have been convicted of an offense for which a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial 1984, as amended, or the sentence by civil authorities included confinement for six months or more. (2) A Soldier subject to discharge under this regulation will be considered and processed for discharge even though he or she has filed an appeal or has stated his or her intention to do so. However, execution of the approved discharge will be withheld until the Soldier has indicated in writing that he or she does not intend to appeal the conviction, or until the time in which an appeal may be made has expired, whichever is earlier; or if an appeal has been made, until final action has been taken. 3. The Manual for Courts-Martial, United States 1984 as amended, Table of Maximum Punishments showed Article 134 (Drugs, habit forming, wrongful possession, sale, transfer, use or introduction into a military unit, base, station, post, ship or aircraft) carried a maximum punishment of a punitive discharge of dishonorable. 4. 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. 5. AR 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 is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190014301 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1