IN THE CASE OF: BOARD DATE: 16 March 2022 DOCKET NUMBER: AR20210011641 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions discharge to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement in support of claim 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 stated he feel that his arrest was due to entrapment by law enforcement. He made a mistake in not going to court martial but they scared him with the prospect of prison time. a. In a statement in support of claim he stated the incidents which resulted in his discharge from the Army were allegations that were never proved in military court. He was going into the Post Exchange (PX) in Seoul, Korea. A guy approached him as he was entering and wanted to give him money to purchase some stereo equipment for him. He does not know why he agreed to do it but he did. They went through the checkout and as he was leaving the PX, he was arrested. The guy who told him what to buy must have been in law enforcement because nothing happened to him. He was wrong but he feels like he was set up. He opted to request immediate separation; he did this so as to avoid the drawn out process of an Article 32 proceeding and to give him the opportunity to return home to assist his parents during some very trying times. This was perhaps the darkest time of his life. He made a mistake that cost him his military career, a career that was really beginning to take off. b. While stationed at Fort Lewis WA he was performing his duties as a supply clerk flawlessly. He was responsible for the management of the parts warehouse and the issuance of parts to keep the Army mission moving forward without delay. In just a very short amount of time after he was stationed at Camp Carroll, Korea he was promoted to E-4 (Specialist 4) and he was responsible for the movement of parts and supplies from various warehouse locations to different Army camps throughout Korea. He was never involved in any motor vehicle accidents despite the distances he had to drive, and he never missed a delivery nor did he deliver the wrong parts. These actions would have resulted in degradation of the Army mission and that would have upset him terribly. c. Despite the charges levied against him, he thought his best course of action was to request immediate separation as this would prevent a drawn out process that could have resulted in him going to Fort Leavenworth and being incarcerated for an interminable amount of time. d. Ever since his separation from the Army he has held several jobs and each one he performed flawlessly, without incident. As the Board can see from the attached buddy letters (no letters were attached). He is held in high regard by peers and superiors and this is an indication of the type of person he really was when he was in the Army. The original situation could have been resolved with discussion and perhaps even non-judicial punishment but the Army seemed very bent on pursuing a full military court martial; he was convinced in his mind that he did not have a chance of surviving the court martial. e. He was then and continues to be a stellar member of his community, He is responsible and conducts himself with pride. He truly wishes he could have stayed in the Army because he felt like he was a positive, contributing Soldier with, much to offer. This situation is truly regrettable but he assures the Board, he is a man of impeccable moral standards and he request the Board to consider his service as being honorable so he may receive the benefits to which he is entitled. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 11 May 1977. He held military occupational specialty 76V (Storage Specialist). b. He received non-judicial punishment on 13 July 1977, for on or about 0600 hours, 11 July 1977, being absent without leave until on or about 1300 hours, 12 July 1977. c. He served in Korea from 17 November 1978 – 11 September 1979. d. On 5 July 1979, while serving in Korea, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with violating a lawful general regulation and its two specifications of on or about 30 and 31 May 1979, purchasing goods for illegal transfer and failure to show information or documentation of continued possession, to wit: four (4) JBL-Speakers, one (1) Sony 19-inch television and one (1) Marantz Music System. e. On 5 July 1979, his chain of command recommended trial by general court- martial. f. On 25 July 1979, the applicant was notified that on 31 July 1979, the commander would conduct an investigation pursuant to Article 32b, Uniform Code of Military Justice, to investigate the facts and circumstances concerning the charges preferred against him. g. On 3 August 1979, the applicant consulted with counsel and was advised of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the Uniform Code of Military Justice, and of the procedures and rights available to him, the applicant voluntarily requested discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge) under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) chapter 10. He understood: * He may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * He could be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veteran’s Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law * He may expect to encounter substantial prejudice in civilian life by reason of an Under Other Than Honorable Discharge Certificate h. On 10 August 1979, the Staff Judge Advocate determined the attached file pertaining to Article 92 and its two specifications of purchasing good for illegal transfer and failure to show information or documentation of continued possession, was legally sufficient. i. The recommendations for the intermediate commanders were as follows: * Company commander – disapproval of the discharge * Installation commander – approval with discharge under other than honorable conditions j. On 16 August 1979, the separation authority approved the applicant's separation UP of AR 635-200, chapter 10. He directed reduction to the lowest enlisted grade. He also directed he would be discharged under other than honorable conditions. k. Accordingly, on 12 September 1979, the applicant was discharged under other than honorable conditions. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 4 months, and 2 days of net active service this period. It also shows he was awarded or authorized: Expert Marksmanship Qualification Badge (Rifle). l. on 26 November 1980, the ADRB, after careful consideration of his military records and all other available evidence, determined that he was properly and equitably discharged. Accordingly, his request for a change in the type and nature of his discharge was denied. 4. By regulation, (AR 635-200) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this regulation provides, in part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 5. By regulation, (AR 600-8-22) states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 6. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant’s petition and available military records, the Board determined there is insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board noted, the applicant provided insufficient evidence of post-service accomplishments or character letters of support showing honorable conduct that might have mitigated the discharge characterization. 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. Therefore, relief was denied. 2. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s service records shows he is entitled to awards not listed on his DD Form 214. As a result, amend his DD Form 214 ending on 12 September 1979 to show the Korea Defense Service Medal. 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 (AR) 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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(1) states an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization. It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. 3. AR 600-8-22 (Military Awards) states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards 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. 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) AR20210011641 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1