ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
Record of Proceedings 
IN THE CASE OF:    BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210010054 
APPLICANT REQUESTS: In effect, reconsideration of the previous request that his under other than honorable conditions (UOTHC) discharge be upgraded. 
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 14 May 2021 

. 
Excerpt of Army Discharge Review Board (ADRB) Case Report and Directive in Docket Number AD96-00685, boarded 1 April 1998 


FACTS: 
1. 
Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090002781 on 18 August 2009. 

2. 
As a new argument, the applicant states, in effect that all the information was not available to him when he signed for his early out.  All of the charges against him were either dropped or not pursued. If all of this information was available to him, he would have retired from the military. 

3. 
Following prior service in the U. S. Army Reserve (USAR), the applicant enlisted in the Regular Army on 31 October 1990.  He deployed to Southwest Asia from 31 December 1990 through 2 May 1991 and was awarded two Army Commendation Medals, the Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal. 

4. 
The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his records contain the ADRB Case Report and Directive for Docket Number AD96-00685, which shows the following: 


a. 
On an unspecified date, the applicant was charged with rape, larceny, adultery, and indecent assault; however, the specific facts surrounding the charge are not available for review. 

b. 
After consulting with counsel, he requested discharge on 3 August 1992, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial. Part V of these proceedings show the applicant authenticated a statement with his own signature, acknowledging that he consulted with legal counsel and was fully advised of his rights and of the seriousness of the offenses for which he was charged. He stated he understood the implications of the request for discharge under the provisions of Chapter 10, acknowledged that he was guilty of the offenses for which he was charged, and his understanding that he could receive a UOTHC discharge. He elected to submit a statement in his on behalf; however, his statement is not available for review. 

c. 
His chain of command recommended approval of his request for discharge on 3 August 1992, with a UOTHC discharge. The separation authority approved his request for discharge on 24 August 1992, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that he be issued a UOTHC discharge. 


5. 
The applicant was discharged on 14 September 1992, 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) he was issued shows he was discharged under the provisions of chapter 10 (in lieu of trial by court-martial) of Army Regulation 635-200. His service was characterized as UOTHC. He completed 1 year, 10 months, and 14 days of active service. 

6. 
On 1 April 1998, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. The ADRB denied his request to upgrade his discharge. 

7. 
On 18 August 2009, the ABCMR also considered his request for an upgrade of his discharge. The Board also denied his request for an upgrade of his discharge. 

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 provides a highlighted excerpt of his ADRB Case Report and Directive. 

10. 
The Board should consider the applicant's request, in accordance with the published equity, injustice, or clemency determination guidance. 


BOARD DISCUSSION: 
After reviewing the application, all supporting documents, and the evidence found within the military record, 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 liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant provided insufficient evidence of post-service achievements in support of a clemency determination. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. Based on a preponderance of evidence, the Board determined that the applicant’s character of service was not in error or unjust. 
BOARD VOTE: 
Mbr 1 Mbr 2 Mbr 3 
: : : GRANT FULL RELIEF 
: : : GRANT PARTIAL RELIEF 
: : : GRANT FORMAL HEARING 
XX: XX: XX: 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 to amend the decision of the ABCMR set forth in Docket Number AR20090002781 on 18 August 2009. 

X 
CHAIRPERSON 
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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The version in effect at the time provided that: 
a. 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. 
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. 

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.  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 UOTHC discharge was normally considered appropriate. 


2. The Office of the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/ Naval Records (BCM/NR) on 25 July 2018 [Wilkie Memorandum], 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 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. 


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