IN THE CASE OF: BOARD DATE: 23 August 2023 DOCKET NUMBER: AR20230000616 APPLICANT REQUESTS: upgrade of his under other than honorable conditions (UOTHC) discharge to honorable. Additionally, he requests an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement 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: a. On 12 December 1995, he married his ex-wife while stationed at Fort Gordon, GA. They were pregnant. His ex-wife was a fellow Soldier who wanted to be a career Soldier. He completed his 1st term enlistment, re-enlisted to be a career Soldier and was re-assigned to Fort Huachuca, AZ. His ex-wife was having a difficult pregnancy and her attempts to attain joint domicile in Fort Huachuca were unsuccessful. She continued to experience negative repercussions for being gay/bisexual. She told him she could not take the continued harassment and she was leaving. He did not want her to be alone in her delicate state and drove from to to get her. They came back to where she stayed in a hotel while he tried to figure out what to do. She was very depressed and despondent. She lost over 20 pounds and did not want to be in the Army anymore. b. He made what he thought was the best decision at the time to protect his then wife and unborn child. They left and went to. Along the drive, she miscarried. Their marriage suffered. They separated and eventually divorced several years later. c. He proudly served in the Army and did not want to be a deserter. He voluntarily turned himself in after 11 months of being absent without leave (AWOL) and was out processed at Fort Knox, KY. The nature of his discharge is not a true representation of his character as a man, or as a Soldier, nor the years of honorable service he gave to his country. He was deployed overseas from Schofield Barracks, HI with the 25th Infantry Division for Operation desert Shield/Storm. He is air assault, and went to ranger school. He was part of cobra gold exercises in Thailand and Korea. d. He continues to live his life with the values that the Army instilled in him. He has been working as a Longshoreman in FL for over 10 years. To work at a U.S. Port requires an extensive security threat assessment background check and attainment of the Transportation Worker Identification Credential card from the Transportation Security Administration. He asks this small dark cloud to be lifted from his otherwise honorable military service. 3. The applicant enlisted in the Regular Army on 2 March 1989 for six years. His military occupational specialty was 74B (Information System Operator). 4. He served in Hawaii from 12 July 1989 through 4 August 1993. 5. The applicant reenlisted in the Regular Army on 20 September 1994 for two years. 6. He was counseled on 31 October 1995 for being apprehended at the main post exchange (PX) for shoplifting. In his Sworn statement, he states he tried to walk out of the main PX with some black leather dye, applicator, and boot polish. He thought he could put it on credit, but he was probably maxed out, so he tried to walk out with the items. He was charged with larceny of nonappropriated fund property. 7. The applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 November 1995, for stealing PX property on or about 23 October 1995. His punishment consisted of reduction to specialist/E-4. 8. The applicant was reported as AWOL on 6 February 1996. His spouse was also AWOL from Fort Gordon. 9. Court-martial charges were preferred against the applicant on 6 March 1996 for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with: * wrongfully communicating a threat to Lieutenant Colonel to injure and/or kill him by writing and sending to him a letter the contents of which stated “be aware, watch your back, your days are numbered.” “Choose your fate: car bomb, bullet to the brain, beaten to death with a car jack, stabbed one hundred times with a screwdriver” on or about 27 November 1995 and on or about 6 December 1995 * behaving with disrespect toward LTC by writing and sending to him a letter saying “I say you’re about 56 years old and probably get a hard-on put my people down…I warn you again…watch your back” on or about 27 November 1995 * behaving with disrespect toward LTC by writing and sending to him a letter saying “I’m surprised you haven’t croaked yet…it’s just a matter of time before I move in for the kill. I want to hear you scram like the b__ you are…you would s__ on yourself…well I guess before I shank you I’ll check your shorts to see how many turds you drop…I’m going to cut of [sic] your head and piss in your dead skull, then pull off your two inch d__ and shove it up you’re a__.” on or about 6 December 1995 10. The applicant was dropped from the rolls as a deserter on 7 March 1996. He surrendered to military authorities at Fort Knox, KY on 10 October 1996. 11. The applicant’s immediate commander recommended trial by general court-martial. 12. Court-martial charges were preferred against the applicant on 17 October 1996, for being AWOL from on or about 6 February 1996 until on or about 10 October 1996. 13. The applicant consulted with legal counsel on 17 October 1996 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 a UOTHC discharge; and the procedures and rights that were available to him. a. After consulting with legal counsel, he voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. 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 and he may expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. b. He elected not to submit statements in his own behalf. 14. The applicant’s commander recommended approval of his request for discharge in lieu of trial by court-martial. There did not appear to be any reasonable ground to believe that the applicant is, or was, at the time of his misconduct, mentally defective, deranged, or abnormal. He further recommended the issuance of a discharge UOTHC. 15. The separation authority approved the applicant's request for discharge in lieu of trial by court-martial on 15 November 1996. He directed the applicant's reduction to the lowest enlisted grade with the issuance of an UOTHC characterization of service. 16. The applicant was discharged on 28 January 1997. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. His service was characterized as UOTHC. He completed 7 years, 2 months, and 20 days of net active service. He lost time from 6 February 1996 to 9 October 1996. He was awarded or authorized the: Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal (second award), National Defense Service Medal, Army Service Ribbon, Noncommissioned Officers Professional Development Ribbon (primary level), Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge. 17. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 18. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. Applicants do not have a right to a hearing before the Board. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. The Board noted the applicant’s post service achievements since his discharge; however, the applicant provided no character letters of support to attest to his honorable character. The Board agreed the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 2. 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. 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, 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the 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. c. Chapter 10 provided 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, a UOTHC discharge was normally considered appropriate. 4. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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) AR20230000616 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1