IN THE CASE OF: BOARD DATE: 24 February 2023 DOCKET NUMBER: AR20220005662 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to a general 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 his original type of discharge is unjust. He did his very best while on active duty. He believes he should have been given a general discharge. The correction should be made because he is deprived of Veterans benefits, since he was discharged. He earned as much as he should have been given but was not. He disagrees that he was given the proper discharge. 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 19 November 1996. He held military occupational specialty 62J, General Construction Equipment Operator. He was assigned to A Company, 14th Combat Engineer Battalion, Fort Lewis, WA. b. On 8 April 1998, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) shows he was charged with, on or about 2 March 1998: * one specification of unlawfully strike Private on the head with a pool cue. * one specification of commit an assault upon Specialist by striking him on the head with a dangerous weapon, to wit: a pool cue * one specification of disorderly, which conduct was of a nature to bring discredit upon the armed forces. c. Special Court-Martial Order Number 10, issued by Headquarters, I Corps and Fort Lewis, shows the applicant was arraigned at Fort Lewis, on the above offenses at a special court-martial convened by Commander, I Corps and Fort Lewis. The accused having been arraigned, the proceeding was terminated because the accused requested a discharge in lieu of court­ martial pursuant to the provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel). d. On 23 April 1998, 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 voluntary discharge under the provisions of AR 635-200, 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 stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service" * he did not elect to submit a statement in his own behalf e. On 30 April 1998, 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. The applicant was accordingly discharged on 15 May 1998. f. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged 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 (Separation Code KFS, Reentry Codes 3). He completed 1 year, 5 months, and 27 days of active service. He was awarded or authorized the Army Service Ribbon and Sharpshooter Badge with Rifle Bar. g. 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 (assault and disorderly conduct) 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 that result in an under other than honorable conditions discharge. The Board noted that 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: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. 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 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005662 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1