IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210014183 APPLICANT’S REQUEST: Reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge and a telephonic or virtual personal appearance before the board. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170004233 on 20 June 2019. 2. The applicant states his separation was erroneous. He was afraid of facing a court- martial with the potential for a prison sentence, so he accepted an administrative discharge. During his out-processing from Hunter Army Air Field (AAF) at the Fort Stewart, GA finance office to transfer to Germany, he met with a Staff Sergeant (SSG/E6) who presented him papers to sign. He signed the documents without reading them, as he had done many times before when dealing with Soldiers in positions of trust; such as with personnel and finance actions. When he arrived in Germany, he noticed a slight pay change, but thought it was a result of cost of living allowance (COLA). He did not know anything was incorrect that could get him into trouble until an investigator approached him. The investigator told him other Soldiers from Fort Stewart were also victims of the SSG's misappropriation of government funds. He had no knowledge of the SSG’s egregious actions; therefore, he did not know he needed to visit the finance office in Germany to correct his pay. 3. The applicant's service record shows: a. On 12 January 1978, the applicant enlisted into the U.S. Army Reserve (USAR), Delayed Entry Program (DEP), while awaiting his 14 March 1978, enlistment into the Regular Army. b. On 14 September 1988, the applicant enlisted in the Regular Army for a 3-year service obligation. Upon completion of his Initial Entry Training, he was assigned to Fort Stewart, GA with duty at Hunter AAF; he arrived at his unit, on or about 20 July 1978. c. On 18 December 1980, orders honorably discharged the applicant for immediate reenlistment in the Regular Army for a 3 year service commitment. His chain of command promoted him to Sergeant/E5 on 1 January 1982. Orders reassigned him to Germany on 2 March 1982, with deferred travel for his dependents. He reported on or about 23 April 1982 and was further assigned to his unit 26 April 1982. d. The applicant's service record is void of the complete facts and circumstance surrounding his discharge. However, the available records show: (1) On 18 April 1983, the applicant’s commander initiated a Report to Suspend Favorable Personnel Actions (Flag) against the applicant for a new investigation initiated on 15 July 1982 for fraud to the government, however no other details are available for review. (2) Orders Number 161-51 issued by U.S. Army Regional Personnel Center, Wurzburg, Germany, on 10 June 1983, show he was transferred to the U.S. Army separation transfer point. (3) His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 July 1983 and issued an UOTHC discharge, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10. He completed 5 years, 3 months, and 25 days of active service during this period. He was awarded or authorized the following: * Army Commendation Medal * Good Conduct Medal * Marksmanship Qualification Badge with Rifle Bar (M-16) * Army Service Ribbon * NCO Professional Development Ribbon 4. On 17 October 1985, the applicant applied to the Army Discharge Review Board (ADRB); after reviewing evidence, the ADRB denied the applicant's request. 5. On 6 March 2017, the applicant applied to the ABCMR for an upgrade of his discharge. The Board denied his petition for an upgrade, however, granted him partial relief on 20 June 2019 by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 14 March 1978 through 18 December 1980.” Accordingly, on 24 February 2020 he was issued a DD Form 215 (Correction to DD Form 214). 6. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 7. AR 635-200, chapter 10, provides for a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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 :X :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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20170004233, dated 20 June 2019. 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 for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 2. AR 635-200, in effect at the time, prescribed policies, and procedures for enlisted administrative separations. 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, in pertinent part, 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, an UOTHC discharge was normally considered appropriate. 3. AR 640-10 (Individual Military Personnel Records), in effect at the time, stated case files for approved separations will be placed in the Soldier's OMPF. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014183 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210014183 1 ABCMR Record of Proceedings (cont) AR20210014183 1