ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  7 June 2022 DOCKET NUMBER:  AR20210016264 


APPLICANT REQUESTS: Reconsideration of his previous request to have his under other than honorable conditions (UOTHC) discharge upgraded to under honorable conditions (general). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record),

.3 letters of support



FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the ABCMR in Docket NumberAR201600003845 on 12 December 2017.

2.The applicant states:

a.He has been a model citizen in the more than two and a half decades, since hisdischarge. He has had no further infractions with any law enforcement or federal, state, or local government entities or officials. 

b.He has transformed himself into a productive member of society over the years,including, but not limited to being employed with Sprouts Market and Save-a-Lot stores in Las Vegas; volunteering for the Boys and Girls Club in Las Vegas and attending Mass Production Church in Las Vegas and North Lutheran Church in Akron, Ohio. 

c.He pledges to continue to be a model citizen within our global community for theremainder of his life and asks the Board to consider him rehabilitated and charge his immature, costly mistake in life to being one bad youthful indiscretion. Therefore; he asks the Board to contemplate his request and grant the requested discharge upgrade with all deliberate speed so he can pick up the shattered pieces of his past. 

3.Title 10, U.S. Code (USC), Section 1552a (3)(D) provides that any request forreconsideration of a determination of a Board under this Section, no matter when filed,
shall be reconsidered by a Board under this Section if supported by materials not previously presented to or considered by the Board in making such determination. 

4.Army Regulation 15-185 (ABCMR) provides that a request for a reconsideration willbe resubmitted to the Board if there is evidence (including but not limited to any facts orarguments as to why relief should be granted) that was not in the record at the time ofthe Board’s prior consideration. The applicant's request for post service clemency isnew argument warranting reconsideration.

5.The applicant enlisted in the Regular Army for 4 years on 6 February 1990.

6.He had overseas service in:

.Germany from 10 June 1990 through 5 January 1991

.Saudi Arabia from 6 January 1991 through 13 May 1991

.Germany from 14 May 1991 through 13 January 1992



7.On 22 June 1992, the applicant received a written reprimand for being unable tocomplete a lawfully requested blood alcohol test when there was substantial evidencethat he was driving while under the influence of intoxicating liquor, on 3 April 1992.

8.The applicant accepted nonjudicial punishment (NJP) under Article 15 of the UniformCode of Military Justice on the following dates for the indicated offenses:

.25 June 1992, for operating privately owned vehicle (POV) while drunk on 3 April1992; failing to obey a lawful command by wrongfully driving a POV on a militaryinstillation on 23 April 1992

.4 March 1992 for failing to obey a lawful order by wrongfully driving a POV onFort Carson military base on 20 October 1992, and failing to go at the timeprescribed to his appointed place of duty on 26 January 1993



9.The applicant tested positive for cocaine use on 16 April 1993.

10.On 4 May 1993, court-martial charges were preferred against the applicant. His DDForm 458 (Charge Sheet) shows he was charged with one specification of violation ofthe Uniform Code of Military Justice (UCMJ), Article 112a, for wrongfully using cocainebetween 29 March 1993 and 1 April 1993.

11.The applicant consulted with legal counsel on 14 May 1993 and was advised of thebasis for the contemplated trial by court-martial; the maximum permissible punishmentauthorized under the UCMJ; the possible effects of an under other than honorableconditions discharge; and the procedures and rights that were available to him.

a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.   

b.He elected to submit a statement in his own behalf, as follows: "I feel that I am agood Soldier who has made mistakes, but feel that I haven't been treated fairly in my company.  Since being in Charlie Company, 2nd Battalion, 77th Armor, I now see that I don't want a future in the military. And I think that I would like to go back to school and further my education and start my family with a good discharge." He added, "I know I don't do drugs and I've proven it before, but now I'm just too tired of defending myself for nothing with nothing to gain." 

12.The applicant's chain of command recommended approval of the applicant'srequest for discharge in lieu of trial by court-martial, and that he receive a UOTHCdischarge.

13.On 18 May 1992, the separation authority approved the applicant's request fordischarge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trialby court-martial, and directed that the applicant be reduced to the lowest enlisted gradeand receive a UOTHC.

14.The applicant was discharged on 25 May 1993, under the provisions of ArmyRegulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial.  The DD Form 214 he was issued confirms he was discharged in the lowestenlisted grade and his service was characterized as UOTHC.  His DD Form 214 furthershows he had 3 years, 3 months, and 20 days of active duty service and his awards anddecorations are shown as the Amy Good Conduct Medal, National Defense ServiceMedal, Southwest Asia Service Medal with 3 bronze service stars, Army ServiceRibbon, Overseas Service Ribbon, Kuwait Liberation Medal, and the Expert Badge withHand Grenade Bar.

15.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel 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. 

16.The ABCMR denied the applicant's request for an upgrade on 12 December 2017.Included in that review was a Summit County Criminal Justice Information System sheetshowing 23 violations between 2 December 2001 and 18 August 2004, and a MedicalAdvisory Opinion that did not find any evidence of his request for an upgrade due topost-traumatic stress disorder.

17.Clemency guidance to the Boards for Correction of Military/Navy Records(BCM/NR) does not mandate relief, but rather provides standards and principles toguide Boards in application of their equitable relief authority to ensure each case will beassessed on its own merits. In determining whether to grant relief BCM/NRs shallconsider the prospect for rehabilitation, external evidence, sworn testimony, policychanges, relative severity of misconduct, mental and behavioral health conditions,official governmental acknowledgement that a relevant error or injustice was committed,and uniformity of punishment. This includes consideration of changes in policy, wherebya service member under the same circumstances today would reasonably be expectedto receive a more favorable outcome.

a.The letters of character provided describe the applicant as always nice, friendlyand respective and he is a man of good character. 

b.In reaching its determination, the Board shall consider the applicant's petition,available records and/or submitted documents in support of the petition.  

BOARD DISCUSSION: 

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 was charged with 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 AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial.  The Board found insufficient evidence of in-service mitigation for the misconduct and the applicant provided insufficient evidence of post-service achievements or reference letters to accompany his statement in support of 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 

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 AR201600003845 on 12 December 2017.   

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 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.

2.Army Regulation 635-200, as then in effect, set forth the basic authority for theseparation of enlisted personnel.  It provided:

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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 
 
 c.  Chapter 10 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. 
 
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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.   
 
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