IN THE CASE OF: 
BOARD DATE: 19 May 2023 
DOCKET NUMBER: AR20220011076
 
APPLICANT REQUESTS: 
. 
upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge 

. 
the narrative reason for his separation be changed from "In Lieu of Trial by Court-Martial" to "Secretarial Authority" 


APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Form 149 (Application for Correction of Military Record) 

. 
Counsel brief with 32 Exhibits (69 pages) 


FACTS: 
1. 
The applicant did not file within the 3-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. 
Through counsel, the applicant states the applicant should be granted the requested relief in the interest of propriety and equity. Counsel's brief is available in its entirety for the Board's review and consideration. 


a. 
During his career, the applicant attended several courses in his field of expertise and received numerous awards and decorations including multiple Army Commendation Medals (ARCOM), Army Achievement Medals (AAM), Army Good Conduct Medals (AGCM). He received stellar Noncommissioned Officer Evaluation Reports (NCOERs) through the extent of his career that included laudable remarks regarding both his performance and his potential (Exhibits 1 and 9-13). 

b. 
The applicant served with a spotless record until the incident that caused his eventual discharge, and one blemish should not leave the blemish of a discharge UOTHC. It is important to note that the Department of Veterans Affairs (VA) has recognized their error in not allowing the applicant to receive any benefits for his good 


service between 5 October 1994 and 4 October 2003 and service-related disabilities between 5 October 2003 to 12 September 2006 (Exhibits 31 and 32). 
c. 
Since being discharged, the applicant has continued to thrive in his personal career, education, and community through selfless service (Exhibits 22 through 31). 

d. 
Despite the applicant's successes in the civilian world with his professional career as well as his dedication to selfless service, he is still haunted by his discharge UOTHC because of the awful stigma it leaves behind. The stain of a discharge UOTHC cannot be simply wiped clean through accomplishments and service, but it can be through this Board's willingness to see past prior mistakes and instead look forward to even more untapped potential. 


3. 
On 5 October 1994, the applicant enlisted in the Regular Army for a period of 4 years. He continued to serve in various assignments through a series of immediate reenlistments. He was promoted to the rank/grade of staff sergeant/E-6 on 1 July 2002. He was assigned to a unit in Germany in September 2002. 

4. 
A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against the applicant on 28 April 2006, for violation of the Uniform Code of Military Justice (UCMJ). The charges were as follows: 

. 
Charge I: Article 107: 

. 
Specification 1: with intent to deceive, submitting a false record using the name of a fictitious person on or about 27 January 2006 

. 
Specification 2: with intent to deceive, submitting a false record using the name of a fictitious person and a falsified signature between on or about 10 and 16 February 2006 

. 
Specification 3: with intent to deceive, making a false official statement on or about 20 March 2006 



. 
Charge II: Article 86: Specification: without authority, absenting himself from his unit from on or about 4 March 2006 and remaining so absent until on or about 22 March 2006 



5. 
On 15 May 2006, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations -Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the 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. He was advised and acknowledged that he could submit statements in his own behalf but elected not to do so. 

6. 
On 1 August 2006, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial. He further directed that the applicant be reduced to private/E-1, with his service characterized as UOTHC. 

7. 
The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged on 12 September 2006, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was separated in the rank/grade of private/E-1, and was credited with completing 11 years, 10 months, and 19 days of net active service this period. He had continuous honorable service from 5 October 1994 until 15 May 2002 and lost time due to absence without leave from 4 March 2006 until 22 March 2006. He was awarded or authorized to wear the: 

. 
ARCOM (2nd Award) 

. 
AAM (3rd Award) 

. 
AGCM (3rd Award) 

. 
National Defense Service Medal (2nd Award) 

. 
Global War on Terrorism Expeditionary Medal 

. 
Global War on Terrorism Service Medal 

. 
Korea Defense Service Medal 

. 
NCO Professional Development Ribbon (2nd Award) 

. 
Army Service Ribbon 

. 
Overseas Service Ribbon (2nd Award) 

. 
Driver and Mechanic Badge with Mechanic Bar 

. 
Marksman Marksmanship Qualification Badge 



8. 
The applicant was 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. A characterization of UOTHC is authorized and normally considered appropriate. 

9. 
Through counsel, the applicant provides the following: 


a. Exhibit 1 – Enlisted Record Brief. 
b. 
Exhibits 2-6 – Certificates of Completion for the various courses the applicant successfully completed. 

c. 
Exhibit 7 – Certificate commemorating the applicant's award of the ARCOM for meritorious service from 13 August 1999 to 12 August 2000. 

d. 
Exhibit 8 – Certificate commemorating the applicant's award of the AAM for meritorious service from 1 June 1998 to 1 August 2002. 

e. 
Exhibits 9-16 – NCOERs rendered for the period from January 1998 through June 2006 which show the applicant received favorable comments and ratings from his rating officials. 

f. 
Exhibit 17 – DD Form 458 depicting the charges that were preferred against the applicant on 28 April 2006. 

g. 
Exhibit 18 – Separation authority's memorandum showing the applicant's request for separation was approved on 1 August 2006. 

h. Exhibit 19 – DD Form 214, for the period ending 12 September 2006. 

i. 
Exhibit 20 – Character reference letter rendered on 9 June 2010, wherein the author praised the applicant for volunteering his time and expertise in support of the Bragg Hill Community Coalition, a Drug Free Community federal grant program, designed to lower community substance abuse primarily targeting at risk youth. 

j. Exhibit 21 – Professional Resume. 

k. 
Exhibit 22-25 – Letters from various community service organizations thanking the applicant for donating his time and expertise in support of their efforts. 

l. 
Exhibit 26-28 – Certificates commemorating the applicant's receipt of the President's Volunteer Service Award presented by AmeriCorps in recognition and appreciation for his commitment to strengthen our nation and communities through volunteer service in 2019, 2020, and 2021 (three). 

m. 
Exhibit 29 – An email message rendered by the applicant on 28 December 2021, wherein he provides a list of his accomplishments to a third party recipient. 

n. 
Exhibit 30 – Certificate showing the University of conferred a Bachelor of Science in Business degree upon the applicant on 31 May 2021. 

o. 
Exhibits 31-32 – A letter from the VA, dated 9 February 2021, that shows an administrative decision corrected clear and unmistakable errors in the prior administrative decision, dated 19 September 2013, in the assignment of service dates for the applicant's honorable and other than honorable periods of service in the Army. It was determined his service from 5 October 1994 to 4 October 2003 is under honorable conditions and is not a bar to VA benefits. His service from 5 October 2003 to 12 September 2006 is under dishonorable conditions and is a bar to VA benefits. He is 


entitled to health care benefits for any disability determined to be service-connected for active service from 5 October 2003 to 12 September 2006. 
10. 
Title 38, USC, Sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 

11. 
In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board determined that partial 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 reason for his separation and whether to apply clemency. The Board agreed the punishment seemed harsh considering his extensive years of service and prior service record. After reviewing the application and all supporting documents, the Board found that partial relief was warranted based upon guidance for consideration of discharge upgrade requests. 
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 by reissuing the applicant’s DD Form 214 for the period ending 12 September 2006 showing his character of service as general, under honorable conditions. 

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 any other relief not stated above. 


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. 
Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 


a. Paragraph 5–3 (Secretarial plenary authority) provides that: 
(1) 
Separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memorandums. 

(2) 
Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special Headquarter, Department of the Army directive that may, if appropriate, delegate blanket separation authority to field commanders for the class category of Soldiers concerned. 

b. 
Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. 

c. 
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. 

d. 
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. 

e. 
When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 


3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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, Boards 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. 


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