IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220003046 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge and a personal appearance before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with self-authored statement addressed to his Congressional Liaison * Authorization Form, for Privacy Release to Congressional Liaison * photocopies of Civilian Accolades (18), including (Certificates of Completion, Participation, Service, Appreciation, Training, Bowling, Phi Theta Kappa Membership Induction, County Coroner's Awards, and Plaques), dated between 2001 and 2021 * Criminal Justice with Police Academy Option, Associate of Arts (AAS), Degree Certificate and Transcript, completed 5 June 2021 * Assisting Individuals in Crisis and Group Crisis Intervention Course Certificate, dated 1-3 December 2021 * Certification Cards for Notary Public expiring 9 October 2021, and County Coroner expiring 31 December 2024, and an expired County Coroner card * Character Reference Letters (7) * Congressional Liaison Letter, dated 1 April 2022 * Army Review Boards Agency, Congressional Liaison and Inquiries Response Letter, dated 1 April 2022 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 received an UOTHC discharge due to the exuberance of his youth and is requesting an upgrade because he has become a successful citizen. He enlisted in the Army after being a Cadet in the Junior Reserve Officers' Training Corps for four years in high school. After joining the Army, he returned home and got married at 19 years old. While stationed in his wife at the time became home sick and told him to take her back to . During Christmas leave they returned home, she told him if he loved her, he would not go back to . He listened and made the biggest mistake of his life. b. He was returned to Fort Hood after being gone for three months. Being young, he did not understand the court-martial proceedings and felt pressured to take the UOTHC discharge. He knows that was not the best decision. c. He was trained to become a firefighter and is still certified. He landed a job with the, during his time at the Sheriff's Office he was recognized for his work as a deputy and what he did in the community. He was also assigned to the U.S. Marshal Service as a for four years. He was elected Coroner in June 2016 and is on his second term. His son and daughter in law are both in the Army. 3. The applicant's service record shows: a. On 25 August 1993, he enlisted in the Regular Army, for a 3-year service obligation, he was 19 years old at the time. Upon completion of his training and award of military occupational specialty 14S (Avenger Crewmember), he was assigned to Fort Hood, TX, and arrived at his unit on 8 July 1994. b. On 17 March 1995, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with going absent without leave (AWOL) from on or about 28 November 1994 through on or about 14 March 1995. c. On 17 March 1995, after consulting with counsel, the applicant voluntarily requested discharge, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial [he was 20 years old]. In his request, he verified no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge, and he elected not to submit a statement in his own behalf. d. On 18 April 1995, the separation authority approved the applicant's request for discharge, in lieu of trial by court-martial. He directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC Discharge Certificate. e. On 16 May 1995, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. He was discharged in the lowest enlisted grade and his service was characterized as UOTHC (Separation Code KFS, Reentry Code 3). He was credited with completing 1 year, 5 months, and 6 days of net active service this period, with one period of lost time from 28 November 1994 to 13 March 1995. He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, and two marksmanship badges. 4. 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. 5. The applicant provides: a. A self-authored statement directed to his congressional liaison, and the documents as detailed above. b. Character reference letters from city and county officials attesting to his character and stating that he served as a Deputy for over 15 years, a second term Coroner, a certified Firefighter, and a dedicated community leader. 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. 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. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial and result in an under other than honorable conditions discharge. The applicant provided evidence of post-service achievements in support of a clemency determination, in the form of character reference letters from city and county officials attesting to his character and stating that he served as a Deputy for over 15 years, a second term Coroner, a certified Firefighter, and a dedicated community leader. While his service clearly did not rise to the level required for an honorable discharge, based on published DoD guidance for liberal consideration of discharge upgrade, the Board determined an upgrade of the characterization of service to general, under honorable conditions is appropriate. 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 a DD Form 214 for the period ending 16 May 1995 showing: * Character of Service: General, Under Honorable Conditions * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change 2. The Board further determined that 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 upgrading her discharge to fully honorable. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 3. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 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) AR20220003046 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1