IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220004034 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge and rank restoration to the rank/grade of Specialist/E-4. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record), with an online application and self-authored statement . Military Personnel File . Resume . Letter of Recommendation and Letter of Recognition . Education Record and Verification of Military Experience and Training (VMAT) . Civilian Performance Reviews from 2012 thru 2018 . excerpt from the University of North Carolina School of Government, Superior Court Judges Benchbook (four pages) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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: a. He was in the Army from 1993 until 1997, when he was discharged due to an unfortunate incident. He was riding in a car with other individuals that got caught up in an unsavory act. While defending himself, he was arrested and sent to jail. When he posted bond, he was notified that the military had placed a hold on his release and was administering a discharge. He was less than 60 days from his expiration of term service (ETS). Due to the hold, he accrued bad service time. If he had been allowed to post bond and return to base, he would have been able to complete his service. He feels there was a rush to judgment and that this was a civilian matter for which he served no time, other than the three months the military held him. b. He had good service until this event, his bond was posted within a few days. His commander issued the retainer without reviewing the facts and wanted to send the applicant to military prison, but the State did not turn his case over to the military. His ETS was supposed to be 5 November 1997, and his discharge was 31 December 1997. The offense occurred around 17 October 1997. After his released from the military his case lasted a couple of months, until he received a Prayer for Judgment Continued (a non-adjudication). He did not serve any time beyond that. Which is why he feels that his characterization was unjust. He attached his service record along with an explanation for a Prayer for Judgement and is awaiting a copy of the actual court documents. c. He has battled with feeling that his discharge was unjust since his separation. Since his discharged, he has worked diligently to prove he is not a failure. He is working to implement the core values and discipline he learned in the military. He has been to several colleges and held management positions at every job he has had, and earned exemplary performance reviews. He asks that his request be viewed with an open heart, to give him an opportunity to access the benefits of being a proud military veteran. 3. The applicant provides, and his service record show the following: a. On 5 November 1993, the applicant enlisted into the Regular Army for a 4-year service obligation. Upon completion of his training, he was awarded the military occupational specialty 88N (Traffic Management Coordinator). b. The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, a request for upgrade from the applicant, dated 16 October 1999, included court documents that show he was charged with: discharging a weapon into an occupied property, conspiracy to commit murder, and first-degree burglary, on an illegible date in September 1997. c. The applicant was discharged on 31 December 1997 in the grade of E-1, under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 14-12c, by reason of misconduct. His service was characterized as UOTHC. He was credited with completing 3 years, 10 months, and 10 days of net active service this period and had lost time from 16 September 1997 to 30 December 1997. He was awarded or authorized the: Army Achievement Medal, Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and a marksman qualification badge. He was credited with completing his first full term of service. 4. On 7 July 1998, the applicant plead guilty to discharging a weapon into an occupied property. In return for him entering a guilty plea a Cumberland Court Superior Court Judge, entered a prayer for judgment continued (PJC) from term to term and session to session. Rule 609 states when a PJC is entered after a defendant freely, understandingly, and voluntarily pleads guilty, the PJC counts as a conviction. The charges he plead guilty to carry a 98-month maximum punishment. 5. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 14, is an involuntary discharge due to misconduct. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 6. The applicant provides the following documents, available for the Board in its entirety: . a self-authored statement as detailed above . a copy of his entire service record . a resume . a supervisor's letter of recommendation for another job, and a Company President and Chief Executive Officer letter of recognition for his outstanding contribution . his education record and VMAT . civilian performance reviews . Superior Court Judges Benchbook showing the rules for entering a Prayer for Judgment Continued (PJC) 7. On 20 April 2000, the applicant was referred to the Army Discharge Review Board (ADRB) for consideration of his request for upgrade. There is no evidence he ever applied to the ADRB. 8. 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. 9. Published guidance to the Service 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: After reviewing the application and all supporting documents and the evidence found within the military record, the Board determined relief was not warranted. The Board carefully considered the applicant's request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. Based on the patterns of the misconduct, 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 Board determined 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, U.S. 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 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. 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 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. 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. //NOTHING FOLLOWS//