ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:  BOARD DATE:  16 December 2021 DOCKET NUMBER:  AR20210013964 


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 293 (Application for the Review of Discharge from the Armed Forces ofthe United States), dated 26 February 2021, with a self-authored statement

.three training certificates

.promotion certificate

.DD Form 256A (Honorable Discharge Certificate)

.two letters of appreciation and one letter of commendation

.three Certificates of Achievement



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.He was wrongfully discharged for a reason (crime) that he had no involvement in.It was never proven that he had anything to do with the charges and the judge told them [prosecutors and command] they didn't have enough on him to court-martial him. 

b.After a court-martial hearing, he was given different counsel and was told hewould go before a Board of Officers.  During that hearing, all of the witnesses were asked if they knew him or if he had been over to their house; he knew none of them.  He was never there and in fact, he was on deployment off the island (Oahu, Hawaii) at the time of the incident.   

c.He didn't realize that there was a charge of possession of marijuana, which waspart of the Board's response, and two unregistered fire arms and an Army smoke grenade were in his possession. 

d.He has never been in trouble for possession of any drugs and feels he was amodel Soldier.  He feels he was given false representation and he was not afforded due process.  He was not told he could appeal the board's decision and so feels he was wrongfully put out of the Army 

3.The applicant enlisted in the Regular Army on 23 June 1978.  He reenlisted in theRegular Army on 23 December 1981.

4.The available record does not contain a full copy of the actions that led to hisdischarge or the discharge processing documentation.

5.A Uniform Code of Military Justice (UCMJ), Article 32(b), investigation was convenedon 24 February 1984, based on the charges of receiving stolen property, larceny,burglary, and two specifications of violating a lawful general order.

a.The available documentation includes a copy of Regulation Number 600-4,





issued by Headquarters, United States Army Support Command, Hawaii on 28 June 1976, titled "PERSONNEL - GENERAL - Proscribed Conduct" and nine witness statements. b. In their statements, the victims (the Dxxxx family) of a burglary that occurred on or about 22 September 1983, described items missing from their residence and identified them as the evidence presented.  None of the victums indicated they knew either the applicant or his brother-in-law,  Hxxxx. c. A witness testified that she knew the applicant and Hxxxx through the applicant's wife, and that Jxxxx Hxxxx had offered to sell her items that matched some of the stolen items.  She also identified items in evidence as some of what  Hxxxx had offered to sell her or that she had seen in the applicant's residence.  d. In his testimony, the U.S. Army Criminal Investigative Command (CID) Special Agent supervising the investigating CID probationary agent identified Hxxxx as a person of interest in the Dxxxx burglary as well as in other burglaries.  He testified that the items held in evidence related to the burglary had been confiscated from the applicant's home.  Additionally, he and the agent he was supervising had confiscated two unregistered handguns and a packet of marijuana seeds from the applicant's house.  He testified that none of the fingerprints from this or other similar burglaries were those of the applicant. 





e. The primary investigating CID agent testified that Hxxxx, who was livingwith the applicant, had been a person of interest in several other burglaries and had been under surveillance.  During a search of the applicant's residence, every time the agents seized an item, the applicant stated "That is mine" or "That's my property."  Items seized included a bag containing items identified as from several burglaries.  The CID agent testified that fingerprints taken at the Dxxxx crime scene were not those of the accused but matched his brother-in-law. f. In a request by the defense counsel for testimony from the applicant's brother-in-law, it was stated that the applicant was not aware of the illicit activities of his brother-in-law and had never encouraged, aided or abetted in the larcenies.  Mr. Hxxxx, on 5 October, after being interviewed by CID and being released, went to the applicant's residence.  Later that afternoon, when he, the applicant. and the applicant's wife tried to leave said quarters, they were detained by Military Police.  They were told that they could not leave the quarters, as they were awaiting a signature for a search warrant.  Mr. Hxxxx went back into the quarters and upstairs.  He attempted to get rid of incriminating evidence by placing said evidence in a trash bag located in the master bedroom.  He also shoved incriminating evidence of jewelry and necklaces into a nightstand in said bedroom.  At no time did the applicant know, condone, receive or encourage Mr. Hxxxx to bring any stolen property into their quarters.  The personal appearance of this witness was necessary for the presentation of the defense's case.  Counsel indicated that Mr. Hxxxx was currently out on bail and was facing similar charges in the civilian sector. g. The final findings and recommendation of the investigation officer are not of record. 

6.The applicant accepted nonjudicial punishment (NJP) on 25 March 1984, under theprovisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing toobey a lawful order on or about 19 May 1984.

7.The applicant’s record is void of the processing documentation that led to hisdischarge.  However, his record contains a DD Form 214 (Certificate of Release orDischarge from Active Duty) that shows he was discharged on 21 December 1984,under the provisions of Army Regulation 635-200 (Personnel Separations – EnlistedPersonnel), paragraph 14-12c.  His DD Form 214 further shows:

.he was discharged in the rank/grade of private/E-1

.he had 6 years, 5 months, and 29 days of active duty service

.he was issued a UOTHC discharge

.his narrative reason for separation was "Misconduct - Commission of a SeriousOffense"



8.The issuance of a discharge under the provisions of Army Regulation 635-200,paragraph 14-12c, required that separation action would be initiated and processedthrough the chain of command to the separation authority for appropriate action.  Theimmediate and intermediate commanders were to recommend separation or retentionand recommendations were to be made as to characterization of service.  Commanderswere to ensure that the Soldier has received adequate counseling.  It is presumed thatall requirements of law and regulation were met and the rights of the applicant were fullyprotected throughout the separation process.

9.The applicant provided copies of:

a.Three training certificates showing completion of:

.Infantry Advanced Individual Training course, dated 21 October 1979

.Battalion Training Management System "Trainer's Workshop," dated 22 April1980

.Primary Noncommissioned Officer Combat Arms course, on 9 May 1980



b.Two letters of appreciation for;

.his efforts during the 1979 Friendship Games

.his efforts and participation during the 25th Infantry Division Silver StreamerCompetition, 6 August 1982



c.Three Certificates of Achievement for:

.distinguishing himself by demonstrating a high level of knowledge and esprit-de-corps which enabled the battalion to attain commendable ratings on anexternally evaluated Army training and evaluation program, dated 28 October1981

.attaining an Expert Infantryman Badge, dated 22 January 1983

.meritorious achievement for the period from 23 August 1983 to 26 August1983



d.An Honorable Discharge Certificate, dated 23 December 1981.

e.A Certificate of Promotion to sergeant, dated 6 January 1982.

f.A Letter of Commendation for his performance while temporarily assigned toHeadquarters and Headquarters Company, 1st Brigade from 20 August through 10 September 1984. 

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


BOARD DISCUSSION: 

1.The Board carefully considered the applicant's request, supporting documents,evidence in the records, and published Department of Defense guidance forconsideration of discharge upgrade requests. The Board considered the applicant'sstatement, his record of service, the frequency and nature of his misconduct, the reasonfor his separation, and whether to apply clemency.

2.The Board found sufficient evidence of in-service mitigating factors to support afavorable clemency determination. While the Board found that the applicant did bearsome responsibility in the events that led to his discharge, the Board also found that theapplicant's character of service is too harsh considering his generally favorable recordof service after his reenlistment.  Based on a preponderance of evidence, the Boarddetermined the applicant's character of service should be upgraded to under honorableconditions (general). Because the original character of service was the basis for hisreduction to pay grade E-1, this relief will entail restoring his rank/grade to
specialist/E-4.

3.The Board concurs with the corrections described in Administrative Note(s) below.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

:XX :XX GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: :XX : : : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by reissuinghis DD Form 214 to show his character of service as under honorable conditions(general), to show his rank/grade as specialist/E-4 with an effective date of pay grade of5 June 1984, and to incorporate the corrections described in Administrative Note(s)below.

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to an honorable character of service.

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. 


ADMINISTRATIVE NOTE(S): 

A review of the applicant's record shows his DD Form 214, for the period ending  21 December 1984, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries to  item 18 (Remarks):  

.SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE

.CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19780623 UNTIL19811222




REFERENCES: 

1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  The version in effect at the time provided that:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.Chapter 14 (Separation for Misconduct) establishes policy and prescribesprocedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 

d.Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers whocommitted a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 

4.The Under Secretary of Defense for Personnel and Readiness issued guidance toService Discharge Review Boards and Service Boards for Correction of Military/NavalRecords 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 thecourt-martial forum.  However, the guidance applies to more than clemency from asentencing in a court-martial; it also applies to any other corrections, including changesin a discharge, which may be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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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