IN THE CASE OF: BOARD DATE: 5 October 2022 DOCKET NUMBER: AR20210014945 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) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 as a 20-year old Soldier, he made one terrible mistake. He used a credit card to make unauthorized charges. Although others were involved, he decided to take the rap himself because of how he was raised. It was the only trouble he ever got into. In order to correct his mistake, he immediately repaid every cent that was charged, and he apologized to the cardholder. The cardholder decided not to press charges because of the applicant’s remorse. However, the captain chose to make an example out of the applicant and his military career was over at that moment. While serving, he moved up quickly and received several awards. He was a model Soldier whose career ended because of one mistake. He is still paying for that mistake some 30 years later. He believes his punishment was too harsh for the crime he committed. In 2000, he started his own business, and he seeks to employ Veterans whenever the opportunity arises. 3. The applicant enlisted in the Regular Army on 6 September 1988. He held military occupational specialties 31N (Communications System Circuit Controller). 4. He served in Korea from 16 June 1989 to 15 June 1990. 5. His DD Form 458 (Charge Sheet) is not available for review. However, on or about 21 March 1990, court-martial charges were preferred against him for violating the Unform Code of Military Justice (UCMJ). [The Charge is Article 134 of the UCMJ]. 6. On 24 April 1991, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court- martial. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge * he understood that, if his request for discharge is accepted, he may be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate * he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law * he stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service" * he elected to submit a statement in his own behalf 7. In his statement, the applicant asked for a general discharge for the following reasons: a. Throughout his military career, he has always been an above average soldier. He came into the military as an E-1 and made E-4 in a year and a half. In addition, he received an Army Achievement Medal while in Korea. Before this incident, he has never been in any trouble or caused anyone any problems. b. He made a mistake, and he is truly sorry for his mistake. He has, however, paid for the mistake that he made by repaying Mr. Br__ the balance that he charged on his AT&T calling card. In addition, he has been taken out of his job and he now works at the company. He has to do any details that come up as well as pull CQ )Charge of Quarters) duty many times other than his scheduled time. He has also been denied the privilege of having favorable actions, including passes. In addition, he was stripped of his access to Top Secret/SCI material. c. He feels that everyone makes mistakes and he made one. But he also feels that is only half of it. The other half of making a mistake is learning from it and not making the same mistake twice. He has definitely learned a most valuable lesson from this. That lesson is honesty is the best policy, no matter what. So, from now on, honesty is "My Policy." His policy is evidenced in the fact that he admitted to the wrongdoing as soon as he was asked by the investigators. He never tried to deny using the card or to hide the fact that he used the card. d. In conclusion, he requests that the separation authority considers his past record, the information given above, and his sincere regret as to what has happened. After such consideration, he requests that this chapter 10 be granted with a general discharge. 8. On 29 April 1991, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. The applicant was accordingly discharged on 3 May 1991. 9. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 10 (in lieu of trial by court-martial) of AR 635-200 with an under other than honorable conditions characterization of service. He completed 2 years, 7 months, and 23 days of active service. He was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Overseas Service Ribbon * Army Achievement Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 10. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 11. By regulation (AR 635-200), Chapter 10: 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. A discharge under other than honorable conditions is normally considered appropriate. 12. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 applicant’s contentions, the military record, and regulatory guidance. One possible outcome was to grant relief by upgrading the character of service to under honorable conditions. However, the majority of the Board members determined the evidence available lacked sufficient specificity regarding the circumstances of his discharge and he provided no evidence of post-service achievements or letters of reference to weigh in support of a clemency determination. Based on a preponderance of evidence available for review, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. Prior to closing the case the Board did note he had a period of service in Korea, is eligible for the award of the Korean Defense Service Medal and recommends that his record be corrected by amending his DD214 to show the award of the KDSM. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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, 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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 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. 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) AR20210014945 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1