IN THE CASE OF: BOARD DATE: 27 May 2021 DOCKET NUMBER: AR20200001084 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Request for Discharge for the Good of the Service * Order not to re-enter Fort Bragg * DD Form 459 (Charge Sheet) * Court-Martial Convening Order * self-authored letter * 3 character statements 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 (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 was discharged in 1989 for something stupid he did while serving in the Army. He was an alcoholic in the military and went through treatment in July 1990 and has been sober since. He went to college at Ridgewater College. He has worked a steady job since 1990, and has a wife and 3 children. He has changed, he was young and did stupid things. He did not realize the impact it would have on his life to have the other than honorable discharge. He has turned his life around and asks for consideration to upgrade his discharge. 3. The applicant enlisted in the United States Army Reserve Regular Army on 23 July 1987 for a period of 8 years in the Delayed Entry Program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 4 years on 8 July 1988. 4. The applicant was awarded the military occupational specialty (MOS) of 13B10 (Cannon Crewman). He was assigned to Fort Bragg, North Carolina on 13 October 1988. 5. On 5 December 1989 the applicant’s unit commander preferred court-martial charges against him for two violations of Article 108 for willfully damaging military property. 6. A DA Form 2823 (Sworn Statement) shows F_ submitted the following statement: On 11 Oct 89 at approx 1830 hrs I met [the applicant] in fron[t] of his truck in the motor pool after my wife dropped me off at the gate. [The applicant] said “aren’t you running late.” and I said “yeah, but not everybody is here yet.” and I then asked [the applicant] if he would help me get my bags out of the connex. As we were walking to the connex [the applicant] said that he wanted to mess up a truck so that we wouldn’t have to go to the field. We got my bags and returned to the truck and when we returned to the trucks with the bags I then reached down and cut the lines and [the applicant] was standing there at the tire. I then gave my knife to [the applicant] because he said that he wanted to do some more trucks. I then left with PFC D_ to go to the company to get my weapon and web gear. When we returned to the motor pool I took D_’s weapon and mine and go on the truck, while D_ parked his car, and then we left for the field. 7. A DA Form 2823 shows the applicant submitted the following statement: On 11 Oct 89 at approx 1900 hrs we were running late in going to the field, I had gone down to help F_ bring up some bags. F_ had gone ahead of me and as I was walking past all of the guns and trucks I saw F_ under a truck. I then walked a few steps more and he called me back. F_ then told me that he had cut a line under the truck and then we left to go to the field after that. 8. A second DA Form 2823 shows the applicant submitted the following statement: On the 11th of October at aprox 1830 hrs, F_ asked if I wanted to do something to a truck, so we would not have to go out to the field. I said OK, then I went down to help him bring his bags up. Then on the way up he had gone underneath the truck and I stood there then after he came up he said he cut a line. Then we went out to the field. 9. On 14 December 1989, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. He elected to submit a statement in his own behalf, which in part, states he should receive a general discharge because he had only made the one mistake. He thought he was paying enough for his mistake by getting discharged. The applicant’s complete statement is available for the Board’s review. 10. The applicant’s record did not include a copy of the report of medical exam or mental status evaluation as required under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200. 11. On 22 December 1989, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of AR 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. 12. The applicant’s DD Form 214 shows: * he was discharged on 11 January 1990 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of a court-martial * he was credited with 1 years, 6 months, and 4 days of net active service * his service was characterized as under other than honorable conditions * his separation code was KFS, and reentry code was 3, 3C * among his awarded or authorized medals and badges are the Army Service Ribbon, Rifle Sharpshooter Badge, and Hand Grenade Expert Badge 13. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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. 14. The applicant submitted a self-authored statement. He states he went through treatment for alcohol 5 July 1990 and completed a 4-week inpatient program at New Beginnings in Waverly, Minnesota. Since then, he has attended Ridgewater College for psychology starting in 1990, and then attended St. Paul College in 1996 for world trade. Since that time he has remained sober for 30 years. He is currently the Director of Warehouse Operations for Norther Radiator. He has previously held positions with GKN Aerospace, Eastern Shipbuilding, Northrup Grumann, and Henkel; all companies that work for the US military. He has been appointed as an Empowered Official, which means he can apply for export licenses with the Department of Defense. He says he has succeeded in both his professional career and personal life since going through treatment for alcohol. He believes his growth since the age of 18 has dramatically changed and would like the opportunity to have his discharge looked at again to see if it could be changed. 15. The applicant submitted the following character statements: a. Sergeant M_, dated 13 December 1989, states “PFC M_ in my opinion has a good attitude and is highly motivated and hard working. He has done well in the section and has helped others as well. He has shown he is a responsible soldier by becoming advanced party driver for the battery, a job in which he has excelled in a high level standard despite what has happened, PFC M_ is a good soldier.” b. Staff Sergeant D_, dated 13 December 1989, states “in my dealing with PFC M_ he has demonstrated a high attitude of motivation. He has always done his part to help the battery as well as his section accomplish its mission. He has been called on to do additional things in the battery such as advance party driver, in which he has done in a high standard fashion. PFC M_ may have some shortcoming but in my opinion he is a good soldier as well as a good person.” c. Sergeant J_, dated 14 December 1989, states “PFC M_ in my opinion is a highly motivated soldier. He has been designated as the advanced party driver for the second platoon. he seems to always do his part and help the section and the battery as a whole. He seems to be a responsible soldier. PFC M_ may have displayed himself in an unsoldierly like conduct, but in my opinion he is a good soldier.” 16. MEDICAL REVIEW: a. The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for an upgrade of his under other than honorable conditions discharge. b. The applicant states he was discharged in 1989 for something stupid he did while serving in the Army. He was an alcoholic in the military and went through treatment in July 1990 and has been sober since. He went to college at Ridgewater College. He has worked a steady job since 1990, and has a wife and 3 children. He has changed, he was young and did stupid things. He did not realize the impact it would have on his life to have the other than honorable discharge. He has turned his life around and asks for consideration to upgrade his discharge. c. The ABCMR Behavioral Health (BH) Advisor was asked to review this case. Documentation reviewed includes: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Request for Discharge for the Good of the Service * Order not to re-enter Fort Bragg * DD Form 459 (Charge Sheet) * Court-Martial Convening Order * self-authored letter * 3 character statements d. VA electronic medical record, Joint Legacy Viewer (JLV) were reviewed. e. A review of the Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were not reviewed as they were not in use at the time of service. f. The ABCMR Record of Proceedings details the applicant’s military service and the circumstances of the case. The ROP indicates that the applicant entered military service on 23 July 1987 and was discharged on 11 January 1990 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of a court-martial and his service was characterized as under other than honorable conditions. g. On 5 December 1989 the applicant’s unit commander preferred court-martial charges against him for two violations of Article 108 for willfully damaging military property. h. JLV is void of any data including Behavioral Health diagnoses. i. The applicant did not submit any medical records or documentation of evidence of a BH diagnoses. j. After reviewing the available information and in accordance with the 3 Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating diagnoses. The applicant met retention standards at the time of discharge. The applicant does not have a service connection. Under liberal guidance, the applicant does not have any mitigating factors for his misconduct. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered the applicants request, supporting documents, letters of support, 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 reason for his separation and whether to apply clemency. The Board agreed with the medical advising official that there were no mitigating factors to the misconduct that lead to his discharge. However, based upon the character statements, and guidance for consideration of discharge upgrade requests, the Board determined that the character of service the applicant received upon separation should be corrected as a matter of clemency. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XXX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 11 January 1990 showing his character of service as under honorable conditions (General). 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides 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. b. 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. c. Paragraph 3-7b provides that 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001084 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1