IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220006789 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions (UOTHC) discharge and to appear before the Board via video/telephone. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Honorable Discharge Certificates (two) * Oath of Reenlistment Certificates (two) * Military Awards, Decorations, and Certificates of recognition (five) * Military Training Certificates (13) * Evaluation Reports (five) * Weapons Qualification Scorecards (two) * Army Physical Fitness Test (APFT) Scorecard * Individual Jump Record * Civilian Education Diplomas (three) * Civilian Job and Training Certifications (32) * Character References (22) * Photographs (four) 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, in effect, he served honorably and strived to be the best he could up until the day of the incident that led to his discharge. He was young, impressionable, and was trying to fit in with the team to which he had been recently assigned. He was the youngest and lowest ranking member of the team. He did not act alone and did not want to steal the items in the first place. He believes he was found guilty by association and was part of a blanket punishment. Following his discharge, he continued to do the best he could while earning multiple degrees, professional skills, and certifications. He has worked as an Emergency Medical Technician-Paramedic for almost 22 years, 18 of which have been at the same company. Currently, he is a paramedic supervisor and firefighter. 3. The applicant enlisted in the Regular Army on 20 July 1995 and continued to serve through a series of reenlistments. He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 February 2000. On 18 August 2000, he graduated from the Special Forces Medical Sergeant Course and was awarded the Special Forces Tab. He was assigned to 3rd Special Forces Group, Fort Bragg, NC. 4. A U.S. Army Criminal Investigation Command (CID) Agent's Investigation Report shows the applicant and four other noncommissioned officers (NCOs) were under investigation for possible larceny of private property consisting of multiple silver bars and coins from the residence of a civilian during a training exercise. 5. On 1 April 2002, the applicant rendered a sworn statement, wherein he confessed to stealing two silver bars and 6 silver coins. 6. A DD Form 458 (Charge Sheet) shows charges were preferred against the applicant on 11 April 2002 for violation of the Uniform Code of Military Justice (UCMJ) between on or about 1 December 2001 and on or about 15 December 2001. The Charges and Specifications were as follows: a. Charge I – Violation of Article 81 – Specification: conspiring with four other NCOs to commit an offense under the UCMJ, to wit: Larceny of approximately ten silver bars and approximately eighteen silver coins of a value in excess of $100.00 by entering a building without permission; taking approximately ten silver bars; dividing the silver bars amongst the co-conspirators; continuing to search for more items of value; finding approximately 18 silver coins; dividing the coins amongst the co-conspirators; and bringing the silver bars and coins to Fort Pickett, NC. b. Charge II – Violation of Article 121 – Specification: stealing approximately ten silver bars and approximately eighteen silver coins of a value in excess of $100.00. c. Charge III – Violation of Article 130 – Specification: unlawfully entering a hunting lodge with intent to commit a criminal offense, to wit: larceny, therein. d. Charge IV – Violation of Article 134 – Specification: wrongfully receiving approximately two silver bars, knowing they had been stolen. 7. The applicant's battalion commander recommended that he be tried by General Court-Martial. 8. On 12 April 2002, the applicant rendered a memorandum wherein he requested that the General Court-Martial Convening Authority (GCMCA) consider allowing him to be administratively separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. He accepted responsibility for his misconduct and provided a synopsis of his upbringing and achievements in life thus far. 9. On 19 April 2002, an officer was appointed to conduct an investigation of the charges against the applicant and other NCOs. The findings of the investigation were to be submitted within ten days after receipt of the appointment. An Article 31 hearing was subsequently scheduled to convene on 5 June 2002. 10. On 8 May 2022, the applicant's company, battalion, and group commander's each recommended disapproval of his request for discharge in lieu of trial by court-martial. They each opined that a discharge UOTHC was not sufficient punishment for the offenses. 11. On 4 June 2002, the legal counsel representing the government requested to reschedule the Article 32 hearing for 2 July 2002. The defense counsel did not oppose the delay and the request to reschedule was granted. 12. On 4 June 2002, the applicant waived his right to the Article 32 investigation and voluntarily requested discharge under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He consulted with legal counsel and was advised of the basis for the trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; and the procedures and rights that were available to him. He elected to not submit statements in his own behalf and declined having a separation physical examination. 13. On 2 July 2022, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, with his service characterized as UOTHC. He further directed the applicant be reduced from SSG/E-6 to private/E-1. 14. On 4 September 2002, the GCMCA granted the applicant testimonial immunity from prosecution in the ongoing trial of a co-conspirator and ordered him to cooperate with the government and defense counsel and to provide them with all information in any related proceeding. 15. Permanent Orders, dated 22 November 2022, show the applicant's Special Forces Tab was revoked. 16. Orders and the applicant's DD Form 214 confirm he was discharged on 26 November 2002, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His DD Form 214 shows: * he was credited with completing 7 years, 4 months, and 7 days of net active service this period * he was awarded or authorized the: * Army Commendation Medal * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Armed Forces Expeditionary Medal * NCO Professional Development Ribbon * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Parachutist Badge * Driver and Mechanic Badge with Driver Bar * he was credited with continuous honorable active service from 20 July 1995 to 10 October 2000 * his service was characterized as UOTHC * he had no lost time 17. The applicant provides the following documents, which are available in their entirety for the Board's consideration, in support of his petition: a. Two Honorable Discharge Certificates issued to commemorate his honorable periods on service ending on 1 February 1998 and 10 October 2000. b. Two Oath of Reenlistment certificates issued to commemorate his reenlistments on 2 February 1998 and 11 October 2000. c. Numerous military awards, decorations, and certificates he received in recognition of his various achievements and accomplishments. d. Numerous certificates issued to commemorate his successful completion of various military training courses. e. Three DA Forms 1059 (Service School Academic Evaluation Report) evaluating his performance while attending the Primary Leadership Development Course, Special Forces Sergeant Course and Basic NCO Course, and French Special Operations Forces Basic Military Language Course. f. Two DA Forms 2166-8 (NCO Evaluation Report) rendered to evaluate his performance and potential during the periods from February 2001 through December 2001 and from January 2002 through April 2002. g. Two weapons qualification scorecards; one showing he qualified "Expert" with a rifle, and one showing he qualified "Expert" with a pistol. h. An APFT Scorecard which shows he scored the maximum of 300 points on the APFT in June 1999. i. A DA Form 1307 (Individual Jump Record) depicting the pertinent data for his military parachute jumps. j. Three diplomas which show he was inducted into Phi Theta Kappa on 8 May 2009; was awarded an Associate in Applied Science degree on 23 July 2009; and was conferred a Bachelor of Science degree on 15 December 2012. k. Numerous civilian job and training certifications. l. Numerous character references rendered by past and present supervisors, colleagues, and acquaintances in support of his Article 32 investigation and/or post- service accomplishments. m. Four photographs taken in Senegal and Tunisia. 18. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, they have been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 19. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. 20. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and further found the evidence of post-service achievements provided by the applicant insufficient in support of a clemency determination considering the severity of the misconduct he committed while holding a position of trust as an NCO. Based on a preponderance of evidence, the Board determined 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. 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. d. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. a. 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. b. 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) AR20220006789 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1