IN THE CASE OF: BOARD DATE: 14 September 2022 DOCKET NUMBER: AR20220002953 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision. Specifically, he requests an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) with self-authored statement FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160005, on 5 September 2017. Wherein, the Board determined the applicant’s characterization of service was neither in error or unjust and denied his request for relief. 2. The applicant states it has been 34 years and it is time for his discharge to be upgraded. Based on facts, no proof of crime, just the statement of a criminal 3. By letter to the Board, the applicant states: a. He is writing this letter for consideration for his service to this country. He served for eight years in the Army. His time in the service was enjoyable and exciting. He feels as if the Army let him down, not even trying to understand or compromise. He thinks 34 years is long enough to be punished for a crime that was not even committed. He did what any person would do, he would buy something if he chose to do so. He never in a thousand years thought he was committing a crime. b. He wasn't in a dark alley, or anything in that mind set. He was at a service member home, purchasing a pair of speakers he was selling. That's it, no hook-up, no criminal act. He was a driver for the Headquarters, Joint Forces Commanders, his character and his military background for this position speaks for itself. He knows it looked bad to have a court martial. He was truly upset when the charges were brought against him, that he purchased stolen goods, it was very hard to stomach. They moved quickly and stripped him of his security clearance. He was moved into the barracks and was assigned to work in the supply room. c. He's 60 years old and is tired, he has had 63 jobs since being out the Army. He is mentally screwed and doesn’t trust companies with his time and dignity. If he sees any kind of wrongdoing, he’s gone, no need to wait years to be mistreated. He would like his discharge to be upgraded and my benefits restored. 4. The applicant enlisted in the Regular Army on 10 July 1979, for a 3-year term of service. He was awarded military occupational specialty 64C (Motor Vehicle Driver). He reenlisted on 13 January 1982 for a 3-year service obligation. 5. Court-martial charges were preferred against the applicant on 8 December 1986, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: * stealing two loudspeakers a value of about $345.00, the property of the Army and Air Force Exchange Service (AAFES), in June 1986 * stealing two loudspeakers a value of about $750.00, the property of AAFES, between 15 June and 30 June 1986 6. The applicant consulted with legal counsel on 27 January 1987 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge 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. 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 Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He elected to submit statements in his own behalf; however, his record is void of a statement. 7. The separation authority approved the applicant's request for discharge on 14 March 1987, under the provisions of Army Regulation 635-200, Chapter 10, and directed that he be reduced to the lowest enlisted grade with the issuance of an UOTHC discharge certificate. 8. Accordingly, the applicant was discharged on 24 March 1987. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 7 year, 8 months, and 15 days of net active service and was awarded or authorized the Army Good Conduct Medal (2nd Award), Overseas Service Ribbon, Drivers and Mechanic Badge-Driver-W Bar and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16). 9. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 22 January 1988, determined he was properly discharged, and denied his request for relief. 10. 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. a. The available evidence shows the applicant reenlisted and was later charged due to the 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 Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. b. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. 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: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was 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 his 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 applicant provided no character letters of support that might have mitigated his characterization discharge. 2. However, the Board determined the applicant had a prior period of honorable service which is not currently reflected on his DD Form 214 and recommended that change be completed to more accurately show his period of honorable service by granting a partial upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected adding the following additional statement to item 18 (Remarks) of his DD Form 214 for the period ending 24 March 1987 to show * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 199790710 UNTIL 19820113 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade of the applicant’s under other than honorable conditions (UOTHC) discharge. 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): Not Applicable REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: 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 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, a UOTHC discharge was normally considered appropriate. 2. 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. 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) AR20220002953 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1