ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 October 2022 DOCKET NUMBER: AR20220004903 APPLICANT REQUESTS: reconsideration of his previous requests for an upgrade of his under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Message, dated 13 April 1993 * Certificate of Achievement, dated 15 March 1994 * Military Intelligence Corps Certificate, date 8 June 1994 * Army Intelligence School Diploma, dated 8 June 1994 * 101st Airborne Division Certificate of Training, dated 26 July 1994 * Physical Profile, dated 21 May 1995 * Report of Medical Examination, dated 21 May 1995 * Report of Medical History, dated 21 May 1995 * Medical Evaluation Board (MEB)Proceedings, dated 7 July 1995 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 22 November 1995 * Medical Documents FACTS: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20120021368, boarded on 20 June 2013 and AR20150010927, boarded on 7 July 2016. 2. The applicant states, in effect: a. He and his friends were driving to the barracks parking lot. When he arrived, he got into a verbal altercation in the parking lot with a noncommissioned officer (NCO) who used derogatory terms and language towards him because he would not move his vehicle from the parking area, a place he had the right to be. b. Although the fight was not physical, the next day he reported the incident, because he was being medically discharged the following Monday and did not want to get into trouble. He was summoned to the sergeant's office along with the NCO, who stated that the applicant took a swing at him and that he had witnesses. He did not have any witnesses for the event because they were out in the field, c. He was told he had two choices; to sign some papers to be discharged or if he refused, he would be court-martialed. He was scared because he had a wife and he would lose everything, so he signed the documents. 3. The applicant provides the following documents: a. Certificate of Achievement, Military Intelligence Corps Certificate, Army Intelligence School Diploma, and a 101st Airborne Division Certificate of Training documents. b. Report of Medical History, dated 21 May 1995 reflects he had swollen or painful joints and cramps in his legs, but was otherwise in good health. c. Medical Documents, which will be reviewed and discussed by the Medical Staff at the Army Review Board Agency. 4. A review of the applicant’s service record shows the complete facts and circumstances surrounding his discharge were absent; however, his records contain the following documents: a. On 21 January 1994, he enlisted in the Regular Army. b. DA Form 3349 (Physical Profile), dated 3 October 1994, shows he was assigned a temporary physical profile for bilateral knee pain “L3”. c. MEB Narrative Summary shows he underwent an examination on 11 April 1995 for chronic bilateral knee pain and the inability to perform his MOS. An MEB was recommended. d. A DA Form 3947 (MEB Proceedings), dated 7 July 1995, shows he underwent an MEB for chronic bilateral patellofemoral syndrome (pain) of the knees. The MEB recommended that he be referred to a PEB. He concurred with the findings and recommendations of the MEB. e. A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows a PEB convened on 4 August 1995 and found him medically unfit for chronic bilateral knee pain. The PEB recommended his disability separation with severance pay. He concurred and waived his right to a formal hearing and the board was approved on 18 August 1995. f. Orders Number 324-0030, dated 20 November 1995, shows he was reassigned to the transitioning point for separation in pay grade E-1 under chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), effective 22 November 1995. g. DD Form 214 shows he was discharged on 22 November 1995, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. He completed 1 year, 10 months, and 2 days of net active service. His service was characterized as UOTHC discharge. 5. On 1 April 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge. The Board determined that the reason for the discharge and the characterization of service were both proper and equitable. 6. Prior ABCMR Docket Number AR20120021368, dated 20 June 2013, shows that his request for an upgrade was denied. The Board determined that he was properly and equitably discharged in accordance with the regulations in effect at the time and all requirements of law and regulations were met and his rights were fully protected. His service did not rise to the level required for an honorable or a general discharge. 7. Prior ABCMR Docket Number AR20150010927, dated 7 July 2016, shows he submitted a reconsideration request, which was denied by the Board. The Board determined that his characterization was commensurate with the reason for his discharge. His statements alone did not overcome the presumption of regularity in the process of his discharge. BOARD DISCUSSION: 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 to amend the decision of the ABCMR set forth in Dockets Number AR20120021368, boarded on 20 June 2013 and AR20150010927, boarded on 7 July 2016. 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. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is a separation with honor. 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. Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted. b. Paragraph 3-7b provides a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of that regulation provides, in pertinent part, 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. 2. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004903 1 1