IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220005746 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to under honorable conditions (general). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . DD Form 214 (Certificate of Release or Discharge from Active Duty) . Letter from Bureau of Investigation, dated 19 January 2022 . Self-authored letter (two pages) . Character reference letters (seven) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, U.S. Code (USC), 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 he was accused of a serious crime by civilian authority, the military reduced him in rank and chaptered him out while he was in the process of defending his innocence. All charges were dropped, and he never went to trial. The military did not treat him as innocent until proven guilty. He was never even tried for the accused offense. The UOTHC characterization has had a negative impact on him and ultimately his family continues to experience financial difficulty while constantly worrying about his physical decline due to injuries sustained during his military service. He has been denied the opportunity to take advantage of more lucrative job opportunities, he has been denied access to health care to address injuries incurred on active duty and his family continues to live under the limitations caused by the UOTHC discharge. In the past 20 years he hasn’t had any issues in the community, nor has he experienced any difficulties with law enforcement. The impact of the discharge that he received due to the filing of the erroneous charges has plagued his family and him for the past 20 years. He asks that you favorably consider upgrading this discharge; injustice anywhere is injustice everywhere. 3. The applicant enlisted in the Regular Army on 5 January 1995, upon completion of training, he was awarded military occupational specialty 31C (Army Radio Operator-Maintainer). He reenlisted on 20 February 1998, for four years. 4. On 19 April 1999 the applicant was arrested by the , Police Department and charged with murder. 5. On 6 May 1999, the applicant, while confined by civilian authorities was seen for a psychiatric evaluation. The examining psychologist noted the limited interaction with applicant was unremarkable, but given his non-participation, no conclusions could be made about the presence or absence of psychiatric disorder. He could not be cleared under these circumstances. 6. The applicant's immediate commander notified him on or about 25 June 1999, that he was initiating actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (Commission of a Serious Offense), citing the applicant's arrest for murder and conspiracy to commit larceny at his residence and a burglary and larceny at another off-post residence. 7. The applicant's immediate commander formally recommended his separation under the provisions of Army Regulation 635-200, Chapter 14-12c, on the same date. 8. On 29 June 1999, the applicant refused to sign and acknowledge receipt of notification of intended separation action. 9. By legal review on 8 August 1999, the applicant’s Chapter 14-12c action was found to be legally sufficient for further processing. 10. The separation authority approved the recommended discharge on 18 August 1999 and directed the applicant's reduction to the lowest enlisted grade and the issuance of an UOTHC discharge. 11. The applicant was discharged on 25 August 1999. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, for misconduct. His service was characterized as UOTHC. He completed 4 years, 7 months, and 21 days of net active service this period. He was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer’s Professional Development Ribbon, Army Service Ribbon, Expert Badge M-16 Rifle, Expert Badge Hand Grenade and Parachutist Badge. His DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment. 12. In the processing of this case, a Criminal Investigation Division Report of Investigation (ROI) was obtained on 29 July 2022. The ROI noted two separate incidents. a. On or about 19 April 1999, the applicant was arrested by the Police Department and charged with murder. He was held at the County Jail, . On 25 August 1999, he was released on bond pending his trial. b. On or about 1 March 1995, the applicant was involved in a verbal altercation that turned physical. After being struck in the chest with a M-16 Rifle, the applicant retaliated by striking the other individual on top of his head with his M-16 Rifle. Both parties were apprehended and transported to the Fort Jackson, South Carolina, Military Police station, he was subsequently released to his unit. 13. The applicant was furnished a copy of the ROI on 29 July 2022, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. 14. The applicant provides: a. A letter from the Bureau of Investigation, dated 19 January 2022, that shows a charge of criminal homicide on the applicant, was not found in their record systems. b. A self-authored letter that details the adverse impact that his UOTHC discharge has had on his family and his life. This letter is provided in its entirety for the Board’s review. c. Character reference letters that collectively attest to the applicant's self-motivation, integrity, positive attitude, reliability, trustworthiness, willingness to help others, and his high moral character. Several letters speak to charitable work and dedicated service he provides to the community. These letters are provided in their entirety for the Board’s review. 15. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board agreed that based upon the letter from the Tennessee Bureau of Investigation, dated 19 January 2022, that shows a charge of criminal homicide on the applicant, was not found in their record systems, relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant’s DD Form 214 for the period ending 25 August 1999 showing his character of service as honorable and the narrative reason as “Secretarial Authority.” 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Section 1556 of Title 10, USC, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. 3. Army Regulation 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 5. 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//