IN THE CASE OF BOARD DATE: 28 March 2023 DOCKET NUMBER: AR20220008886 APPLICANT REQUESTS: Reconsideration of his prior request for upgrade of his under other than honorable conditions (UOTHC) discharge to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * DD Form 214 (Certificate if Release or Discharge from Active Duty) * letters of support (three) 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 Number AC93-1288 on 16 February 1994. 2. The applicant states: a. When he came into the military he was functional illiterate. Unfortunately, elementary school teachers got him started on the wrong foot. Because he had a learning problem, it seemed as though they would use it intentionally to humiliate him by having him stand in the corner for turning in homework written too small. This caused him to withdraw into a shell. He developed a negative attitude towards learning. As a result, he could barely read and write his name when he graduated from high school. His esteem was low because he realized his teachers had passed him just to rid themselves of him. b. Through hard work he developed ways around reading and writing enough to earn the rank of E-5. It was his background that influenced him into making a stupid mistake that caused him to receive a bad discharge on his records. He was only 26 years old when this happened to him, but it was an eye-opener that has lasted throughout his life. His less than honorable discharge brings the most shame to his name, and it came about because of his refusing to loan money to Sergeant First Class (SFC) his Platoon Sergeant. SFC would not accept no for an answer and pressured the applicant to help him in the black market. Due to the conflict, he requested a transfer to another platoon, but his request was denied. His black-market dealing downtown was the wrong decision. The bright spot of the day of his departure was seeing SFC escorted away in handcuffs. c. He accepts full responsibility for his lack of judgment, he was not mature enough to realize the consequences of his actions. As a result, that awful decision has extracted its toll over the years. His lifestyle since leaving the military has been positive. He became a union carpenter until a nerve disease (Chronic Demyelinating Poly Neuropath) forced him to retire. In the back of his mind, he always wanted to become a more literate person. Therefore, in his fifties he enrolled in a literacy program at the local library. He made enough progress after eight months to enroll in Junior College and completed his courses with confidence. He became a Seven Day Adventist Christian and through the church program, he taught basic core skills to former prisoners. The Junior College that he enrolled in hired him to teach an "Introduction to Carpentry" course. Today he works for the County Council of Construction as an instructor. He hopes the Board will consider the circumstances of his childhood that contributed to his lack of judgment in making the wrong decision. 3. The applicant enlisted in the Regular Army on 14 November 1978. He completed training with award of military occupational specialty 12B (Combat Engineer). 4. The applicant served in Korea from 5 March 1979 to 29 February 1980. He had an immediate reenlistment on 30 June 1981, and he again served in Korea from 28 October 1981 to 21 June 1983. The highest grade he held was E-5. 5. Court-martial charges were preferred against the applicant on 11 May 1983 for violations of the Uniform Code of Military Justice (UCMJ). The relevant DD Form 458 (Charge Sheet) shows he was charged with: * wrongfully purchasing controlled items in excess of the prescribed monthly quantity limitations established by Regulation, during the month of March 1983 * wrongfully using a ration control plate belonging to another on 15, 18, 19, 22, and 23 March 1983 (five separate specifications) * wrongfully transferring duty-free controlled items on 15, 18, 19, 22, and 23 March 1983 (five separate specifications) 6. The applicant consulted with legal counsel on 24 June 1983 and was advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of an under other than honorable conditions discharge; and the procedures and rights that were available to him. a. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. The applicant indicated he would submit a statement in his own behalf; however, the available record is void of a statement. 7. A Memorandum for Record, dated 5 July 1983 shows the applicant's chain of command recommended approval of the applicant's request for discharge in lieu of trial by court-martial, and that he receive a UOTHC discharge characterization. 8. The separation authority approved the applicant's request for discharge on 15 July 1983, and directed that the applicant be reduced to the lowest enlisted grade and receive a DD Form 794A (UOTHC Discharge Certificate). 9. The applicant was discharged on 27 July 1983, in the grade of E-1. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635- 200, Chapter 10, for the good of the service. His service was characterized as UOTHC, Separation Code JFS, Reentry Codes 3 and 3C. He was credited with 4 years, 8 months, and 14 days of net active service. His awards are listed as the Army Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and the Sharpshooter Qualification Badge with Rifle and Grenade bars. 10. The ABCMR denied that the applicant's request for an upgrade of his character of service on 16 February 1994, stating the applicant had failed to submit sufficient evidence that that the record was in error or unjust. He offered no proof that he was coerced into black-marketing by his platoon sergeant or anyone else. 11. The applicant provides three letters of support: a. An Antelope Valley Community College District Corporate & Community Services Coordinator describes him as being observant and helpful to those in his sphere. He was hired as pre-apprenticeship program instructor, teaching four classes of 120 hours of instruction per class, with over 85 students. He willingly relates his life experiences, including when he felt he was behaving like a "knucklehead." He desires to start a non- profit, expanding his opportunities to help at-risk youth and ex-offenders with math tutoring, and life and construction skills training. Through positive encouragement and continuity of purpose, he has gained the trust of those in his influence. b. A friend describes him as exemplifying the qualities of integrity, accountability, empathy and resilience. He is a pillar in the community and a mentor to youth, helping them academically. He is more a giver than taker often engaging in voluntary work. The community has high regard and esteem for him. c. The principal of the Destiny Performing Arts Learning Academy states the applicant has been teaching 2nd through 8th grade math in the school, and the results have been astounding. He has a passing rate of 91 percent, and his students always speak very highly of him. He also enjoys being active in the school and the community. His presence was a regular fixture at after school and weekend functions and he also proudly represented the school at the community functions. He is an asset and valued member of the community, always on time, very polite, respectful, dependable, responsible, and a pleasure to have around. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to 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. 13. 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 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 (wrongfully purchasing controlled items in excess of the prescribed monthly quantity limitations, wrongfully using a ration control plate belonging to another, and wrongfully transferring duty-free controlled items) 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 accepted responsibility or his actions and has provided three character reference letters, in support of clemency. While his service certainly did not rise to the level of an honorable characterization, an upgrade to general, under honorable conditions is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number Docket Number AC93-1288 on 16 February 1994. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by * reissuing the applicant DD Form 214, for the period ending 27 July 1983 showing the character of service as General, Under Honorable Conditions * adding to item 18 (Remarks) the entries “Soldier has completed first full term of service” and Continuous Honorable Active Service 19781114 to 19810629” 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at that time provided that: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. ==== At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge certificate. 2. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and BCM/NRs on 25 July 2018, 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 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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.) AR20220008886 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1