IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220003287 APPLICANT REQUESTS: 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 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, by letter to the Board: a. He is remorseful for his actions and the decision he made at the time of the incident. His behavior was unacceptable, and he has had to live with that for the rest of his life. Throughout the years, he has shown a commitment to making a difference in his community. He has remained active by coaching neighborhood kids in basketball. In addition to serving as an assistant football coach for a local football organization. b. The presumption of regularity that might normally permit the Board to assume that the service acted correctly in the characterization of his service does not apply to his case. Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge. Forcing him to hide a part of his life. His conduct and efficiency ratings were above average. He received awards, decorations, and letters of recommendation. His record of promotions shows he was a good service member. His record of military education showed his ability to serve at a high level. He served proud and honorable as a Soldier. 3. The applicant enlisted in the Regular Army on 9 April 1985. He was awarded military occupational specialty 13B (Cannon Crewmember). He reenlisted on 26 February 1988 for a 4-year term of service. He extended his enlistment for assignment to Germany on 30 June 1989. 4. Court-martial charges were preferred against the applicant on 24 April 1990, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with: a. One specification of culpable negligence for failing to ensure his infant was not left alone with his wife, civilian, whom he knew or should have known was acting in a bizarre and mentally unstable manner, resulting in the infants death, on or about 8 December 1989. b. Three specifications of without authority, failing to go to/or leaving his appointed place of duty on or about 19 February 1990 and 23 March 1990. c. One specification of being disrespectful to a superior non-commissioned officer on or about 24 March 1990. 5. The applicant consulted with legal counsel on 18 June 1990 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. No election was made whether he would submit statements in his own behalf. 6. The separation authority approved the applicant's request for discharge on 15 July 1990, under the provisions of Army Regulation 635-200, Chapter 10, and directed he be reduced to the lowest enlisted grade and the issuance of a UOTHC discharge. 7. Accordingly, the applicant was discharged on 13 August 1990, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court- martial. His DD Form 214 confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. He was credited with 5 years, 4 months, and 5 days of net active service. He was awarded or authorized the: * Army Service Ribbon * Good Conduct Medal * NCO Professional Development Ribbon * Army Achievement Medal * Sharpshooter Marksmanship Qualification Badge with Rifle (M-16) * Air Assault Badge * Expert Marksmanship Badge with Grenade Bar 8. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade to his service characterization. The ADRB considered his request on 18 October 1993, determined he was properly discharged, and denied his request for relief. 9. 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. 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. 11. 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: After reviewing the application and all supporting documents, the Board found that relief was partially warranted. 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. 1. 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 carry an under other than honorable conditions characterization of service. The applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. The applicant served two periods of service: A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, all Board members agreed that his DD Form 214 should be amended to show his continuous honorable service for his first enlistment. 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 amending Block 18 of his DD Form 214 to add: * Continuous honorable active service from 9 April1985 to 25 February 1988 * Member completed first term of service 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 upgrading the characterization of his 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. 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 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 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 of that regulation provides, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court- martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. 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) AR20220003287 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1