IN THE CASE OF: BOARD DATE: 20 January 2023 DOCKET NUMBER: AR20220004413 APPLICANT REQUESTS: change character of service from under other than honorable conditions to honorable. He also requests personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), 28 December 2021 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 is 100% disabled. The commander told them in formation that they could bring weapons back from the war. After the containers left for the states, they were told they could not have [guns] and anyone having one would be penalized. Lots of soldiers placed their weapons in their company . Since he was in change, he took the blame about something he knew nothing about. He was told ten years after his discharge would change, but that did not happen. 3. The applicant has prior service. On 22 January 1979, he enlisted in the Regular Army. He completed training and was awarded military occupational specialty 55B10 (Ammunition Specialist). On 1 September 1990, he was assigned to 528th Support Battalion in Fort Bragg, N.C. 4. The applicant served in Saudi Arabia from 19 January 1991 to 10 April 1991. 5. A Criminal Investigation Department (CID) report, 14 November 1991, shows in part, the applicant stated: a. He served in Saudi Arabia. During the month of January or the first of February he was loading up the crates in a sea/land container. He observed one crate with a crack in it. He put two AK-47s inside the crate. He did not know if he would be unpacking this unit, but he would go down and check each sea/land container as it came into Fort Bragg. In May or June, he located the sea/land container, with the two AK-47s. He removed the firearms from the crate and put them in his 87 Chevrolet van and carried them to his residence. b. That night after he went home, he drove the firearms to. The AK-47s were disassembled when they were brought over. He and tried to reassemble the rifles but were unable to put them together completely. He contacted Sergeant whom he knew as an armorer to see if he would assemble the rifles, Sergeant agreed. Sergeant followed him to house to pick up the rifles to carry them back to his house to work on them. About three days later, Sergeant said the rifles were ready. Sergeant carried the rifles to house and left them. He was not present then. He saw Sergeant the next day and he stated that he had carried them back. He did not want the rifles, so he gave them to. He saw the rifles at his house on a couple of occasions. 6. On 3 December 1991, a CID report which shows, in part, the [applicant] was charged with unlawful possession of a weapon, smuggling, and larceny of government property. On 14 November 1991, [applicant] admitted that he acted alone and smuggled two AK- 47s from Southwest Asia to Fort Bragg, NC. [Applicant] stated he disassembled the AK- 47s and concealed the parts inside a CONEX that was bound for Fort Bragg, NC. [Applicant] stated he took the weapons to the residence of friend of his. [Applicant] stated he solicited to re-assemble the weapons as he [applicant] knew was familiar with Soviet weapons. [Applicant] stated he went to off post residence and directed to residence, where re-assembled the two AK-47s. [Applicant] stated the two AK-47抯 was still at residence. 7. His DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him for * one specifications of failure to obey a lawful general order * one specification of failure to give notice and turn over to proper authority without delay certain captured property which had come into his possession * one specification of unlawfully import or bring firearms into the U.S. * two specifications of unlawfully transfer firearms * one specification of unlawfully possess firearms * one specification of unlawfully make or manufacture firearms 8. On 16 April 1992, his chain of command recommended the charges in the case of the applicant be tried at a trial by General Court Martial. 9. On 27 April 1992, the immediate commander recommended approval and that an Other Than Honorable Conditions Discharge Certificate be issued. 10. According to the Army Discharge Review Board Record of Proceedings: a. On 27 April 1992, the applicant consulted with counsel and subsequently requested discharge under the provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations), in lieu of trial by court-martial, and did not submit a statement in his own behalf. b. The immediate and intermediate commanders recommended approval with an under other than honorable conditions discharge. Undated: Intermediate commander recommended approval with an under other than c. On 24 June 1992, consistent with the chain of command recommendations, the separation authority approved the applicant's elimination from the service UP of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 11. The applicant was discharged from active duty on 10 July 1992. His DD Form 214 shows he was discharged UP of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an under other than honorable certificate. He completed 13 years, 5 months and 19 days of active service. His DD Form 214 listed his continuous honorable service from 22 October 1979 to 31 May 1990. He was awarded or authorized: * Army Service Ribbon * National Defense Service Medal * Expert Qualification Badge with Rifle Bar, M-16 * Overseas Service Ribbon * Army Good Conduct Medal (4th Award) * Army Achievement Medal (3rd award) * Southwest Asia Service Medal with one bronze service star 12. General Court-Martial Order Number 3, issued by Headquarters, U.S. Army Special Forces Command, Fort Bragg on 12 August 1992, shows the applicant, having been arraigned, the proceedings were terminated by the military judge. Due to the subsequent withdrawal of the court-martial charges against the applicant by the convening authority on 24 June 1992, the charges and specifications are dismissed. All rights, privileges, and property of which the accused may have been deprived by virtue of these proceedings are hereby restored. 13. On 26 May 1993, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. a. The record does not support the applicant's contention, and no evidence to support it has been submitted by the applicant, that he was coerced into signing his request for Chapter 10 discharge. The method in which another soldier's case was handled is irrelevant to the applicant's discharge. Applicable regulations state that each case must be decided on an individual basis, considering the unique facts and circumstances of that particular case. b. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge. The ADRB noted that after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court- martial. By doing so, the applicant admitted guilt to several serious offenses. c. The ADRB was satisfied that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. Finally, the ADRB considered the applicant's entire record of service for the period under review; it also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of this prior to requesting discharge. The ADRB, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief. 14. By regulation (AR 635-200), a member who has committed an offense 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. 15. In reaching its determination, the Board can consider the applicant抯 petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 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抯 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, United States 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 635-200 (Personnel Separations) 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. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600𤾃9. 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. 3. 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. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 5. Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, shows applicant抯 do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004413 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1