IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220004064 APPLICANT REQUESTS: issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he completed his term of service of 6 years honorably. In effect, an upgrade of his under other than honorable conditions discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 he was exonerated for accusations made against him and separated from the military. He has served our country to the best of his ability and made the rank of sergeant in (3) years, earned (2) Good Conduct Medals and an Army Achievement Medal well. He has been offered a position with the. He currently does not have a DD Form 214 (certificate of Release or Discharge from Active Duty) or DD Form 215 (Correction to DD Form 214. After thinking about this for many years, he feels he has served his country honorably and was a victim of targeting. He would greatly appreciate the consideration for this upgrade and would have considered making the military a career if the circumstances were different. 3. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 27 February 1990, and he held military occupational specialty 44B, Metal Worker. He reenlisted on 28 June 1995. The highest rank he attained was sergeant/E-5. b. On 18 April 1996, he was reprimanded for driving while impaired. c. On 2 April 1996, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with: * one specification of physically control a vehicle, to wit: a passenger car, while the alcohol content in his breath was 0.16 grams of alcohol per 210 liters of breath or greater, as shown by chemical analysis * one specification of wrongfully soliciting Specialist _ to willfully and unlawfully remove, conceal, or destroy a public record, Field Grade Article 15, UCMJ, and supporting documents * one specification of wrongfully offering to Specialist the sum of $600, with intent to influence the action of the said Specialist with respect to an official matter in which the United States was and is interested, the proper processing of the Field Grade Article 15, UCMJ, Military Police Report and related documents in support· of the punishment of the said Sergeant d. On 12 April 1996, additional court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with: * one specification of willfully disobeying a lawful order to not have any further contact with Specialist * one specification of wrongfully endeavor to influence the testimony of Specialist a witness before the court-martial in the case of the said Sergeant, by attempting to have Specialist testify falsely concerning the events surrounding his wrongful solicitation of Specialist to willfully and unlawfully remove, conceal, or destroy a public record e. On 30 May 1996, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and had not been subjected to any coercion by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge * he understood that, if his request for discharge is accepted, he may be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate * he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law * he elected not to submit a statement in his own behalf f. His immediate, intermediate, and senior commanders all recommended approval with issuance of an under other than honorable conditions discharge. g. On 4 June 1996, following a legal review for legal sufficiency, and consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued an under other than honorable conditions discharge. h. Special Court-Martial Order 12, dated 4 June 1996, issued by Headquarters, 82nd Airborne Division shows the applicant having been arraigned, the proceedings were terminated because the Commander, 82d Airborne Division, dismissed the charge and specification on 4 June 1996. All rights, privileges, and property of which the accused may have been deprived by virtue of these proceedings are hereby restored (the applicant submitted a chapter 10 voluntary request for discharge). i. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 27 June 1996 in accordance with chapter 10 (in lieu of trial by court-martial) of AR 635-200 with an under other than honorable conditions characterization of service. He completed 6 years, 4 months, and 1 day of active service. His DD Form 214 also states in: * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Army Achievement Medal, Army Good Conduct Medal (2nd Award), National Defense Service Medal, NCO Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and Parachutist Badge * He was assigned Separation Code KFS and Reentry Coded 3 * The Remarks Block listed his immediate reenlistment, his continuous honorable service from 27 February 1990 to 27 June 1995 and that he completed his first term of enlistment j. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 4. By regulation (AR 635-200), Chapter 10: 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. A discharge under other than honorable conditions is normally considered appropriate. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 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. 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, 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 Army Board for Correction of Military Records (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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 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 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. a. Paragraph 3-7a states that 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. Paragraph 3-7b states 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. 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. 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) AR20220004064 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1