IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20220003311 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to general, under honorable conditions * a personal appearance before the Board via video/telephone APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-written statement, 23 November 2021 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States 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: a. First, he would like to clarify that while serving in the Army, he did in fact commit Delayed Payment Plan (DPP) fraud and was confined for a period of up to three years. However, he was still considered to be a model Soldier within his confinement when he appeared at his parole hearing, which is why he was given an opportunity to be reinstated into the U.S. Army. He was elated at the fact that he was given a second chance and accepted the opportunity. b. Upon his release from confinement, he was sent to his duty station. At this time, he was demoted to a private but still wore his combat patch on his arm, although we were not at war. This caused other Soldiers to start asking questions and looking into his "DA Form 2-1 (Personnel Qualification Record)" which stated his confinement time. He felt very uncomfortable as they began to treat him differently. Feeling ashamed and humiliated, he went in and erased his confinement time from his file. Also, at this time in his life, he had a son on the way, so he decided to get a second job working at McDonald's. He needed to prepare himself financially for his new family. Coincidently, he ended up getting promoted too. Unfortunately, even after offering to pay back the funds that he received from his promotion, his commander and first sergeant thought he erased his file to gain rank. He tried to explain to them that he only did it so that the other Soldiers would not have a reason to look down on him and that he just wanted to be given the chance to be a Soldier again without being judged. He can understand their reasoning for not believing him, but if they could have only understood his mental state at that time, he feels they would not have given him an Other Than Honorable Discharge. c. In conclusion, it has been 25 years since his last day in the military. He made mistakes and made some poor decisions. Since then, he has learned from his mistakes and has become a better person and a better man. He has learned to accept the consequences of his actions even if it does not feel so great. He has had time to reflect on the wrong that he has done in his life and he has corrected as much as he could along his journey while raising two young men and marrying the love of his life in the process. He is humbly asking for his discharge to be reconsidered. 3. A review of the applicant's official records show the following: a. On 30 December 1991, the applicant enlisted in the Regular Army for 5 years. b. On 27 February 1995, Headquarters Fort Hood, Texas issued General Court- Martial Order Number 7 that shows the applicant was arraigned, tried, and convicted by court-martial on 17 November 1994. He was found guilty of: (1) Conspiracy to commit larceny between 1 December and 16 December 1993. (2) Being absent without leave (AWOL) terminated by apprehension from on or about 7 February to 15 September 1994. (3) Larceny of Army and Air Force Exchange Service (AAFES) property of a value of $813.45 on 30 October 1993. (4) Larceny of AAFES property of a value of $770.65 on 16 December 1993. (5) Larceny of AAFES property of a value of $404.00 on or about 16 December 1993. (6) Conspiracy to commit larceny of military identification cards between 1 December 1993 and 16 December 1993; altering them and inserting pictures of themselves and another Soldier. (7) Larceny of seven (7) military identification cards between 1 October 1993 and 7 February 1994. (8) Larceny of AAFES merchandise of a value of about $974.13, on or about 14 December 1993. (9) Larceny of AAFES merchandise of a value of about $972.90, on or about 16 December 1993. (10) Larceny of AAFES merchandise of a value of about $764.95, on or about 1 January 1994. (11) Forgery of a DPP Charge Ticket for the value of $813.45, on or about 30 October 1993. c. The applicant was sentenced to be reduced to the grade of private (PVT/E-1), confinement for 40 months, forfeiture of all pay and allowances, and a dishonorable discharge. Only so much of the sentence as provided for reduction to the grade of PVT/E-1, confinement for 37 months, forfeiture of all pay and allowances, and a dishonorable discharge was approved, and except for the part of the sentence extending to a dishonorable discharge, was executed. The applicant received one day administrative credit for pretrial confinement served. d. On 11 October 1995, a Memorandum – Subject: [Applicant], shows the applicant appeared before the Clemency and Parole Board on 26 September 1995; and the Deputy Assistant Secretary (Army Review Boards/EEO Complaints) approved the suspension of the applicant's dishonorable discharge and sentence to confinement; and restored the applicant to active duty, effective as soon as possible, however, not later than 20 October 1995. e. On 16 November 1995, Headquarters, U.S. Army Field Artillery Center and Fort Sill, General Court-Martial Order Number 123 announced that, the part of the sentence pertaining to a dishonorable discharge and confinement was suspended, effective 16 November 1995 (contingent upon the successful completion of the Military Instruction Course and other required training). To be automatically remitted if not vacated before 15 November 1996 or expiration of the Soldier's term of service, whichever was less. f. DA Form 4187 (Personnel Action) shows the applicant was advanced to the pay grade of E-2, effective 1 April 1996. g. On 16 September 1996, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for signing an official record at or near Fort Riley, KS, on or about 24 April 1996, with the intent to deceive. He retyped a DA Form 2-1, which record was false in that there was no indication of any confinement time and was then known by him to be so false. The was in violation of Article 107 (False Official Statements) of the UCMJ. The applicant did not appeal. h. DA Form 4187 shows the applicant was reduced to pay grade E-1, effective 16 September 1996. i. On 26 September 1996, after consulting with legal counsel, the applicant voluntarily requested to be discharged in lieu of vacation of a suspended sentence under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. (1) Legal counsel advised him of the basis of the contemplated vacation of his sentence suspension; of the possible effects of an Under Other Than Honorable Conditions Discharge if the request was approved; and of the procedures and rights available to him. (2) The applicant indicated that he submitted statements in his own behalf; however, the statements are not available. He also waived taking a physical examination. (3) His chain of command recommended approval of his request to be discharged and recommended his service be characterized as UOTHC. (4) On 9 October 1996, the separation authority approved the applicant's discharge under the provisions of AR 635-200, Chapter 10, paragraph 10-1a, for the good of the service for a Soldier under a suspended sentence of a punitive discharge. The separation authority also directed the applicant's discharge be characterized as UOTHC and immediate reduction to the lowest enlisted grade. j. On 22 October 1996, the applicant was discharge from the Army. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. His character of service was listed as UOTHC and he completed 4 years, 9 months, and 23 days of net active service with lost time due to AWOL and confinement; however, it is not shown on his DD Form 214. k. On 13 August 2003, the Army Discharge Review Board voted unanimously to deny his request for an upgrade of his UOTHC discharge. 4. Published guidance to the Boards for Correction of Military/Naval Records (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: 1. The Board determined 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. After reviewing the application and all supporting documents, the Board found that relief was not 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. 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. 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 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, USC, 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. AR 15-185 (ABCMR), states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases based on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2–11 states that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 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 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. b. The regulation provides that 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. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. a. 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. b. 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. 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) AR20220003311 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1