IN THE CASE OF: BOARD DATE: 10 August 2023 DOCKET NUMBER: AR20230001724 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge, and restoration of his rank to sergeant (SGT)/E-5, and all benefits associated. Additionally, he requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal information packet including his birth certification, driver license, and social security card * Excerpt of Service Record labeled separation packet, including Reenlistment Data Card, Enlisted Evaluation Report (EER), Education Record, Good Conduct Medal, Equipment Operator’s Qualification Record, and DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 June 1982 * Two Post Service Packets containing the following 35 documents: * Certificates of Completion (Substance Abuse Treatment Program, Drug Education, and Changes II Program, Janitor - On the Job Training, Peer Health Education) (four) * Department of Criminal Justice, Certificate, showing he was sentenced to 18 years confinement for aggravated sexual assault and repeated indecency with a child on 6 June 1995, and was in custody from 7 August 1997 thru 19 December 2013 * High School Diploma, Certificates of completion for Legal Assistant/ Paralegal, Associates of Arts in Business Administration, Bachelor of Business Administration and Master of Business Administration with college transcripts * Certificates of Achievement, Safe Food Handling * Universal Life Church Certificates, Ordination, Master’s Degree in Religion, Soul Clinic License, and a Doctor of Universal Order, Biblical Studies, Divinity, Religious Humanities, Immortality, the Universe, Metaphysics, Motivation, Religious Science, Universal Life, and the Philosophy of Religion * Certificates of Participation for Health and Wellness, Optimism and Positive Thinking * Character Reference Statements (five) 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 he has been punished enough for his undesirable behavior of theft and drunkenness. He has corrected his behavior and held himself accountable. 3. On 16 June 1978, the applicant enlisted in the Regular Army for a 4-year service obligation. Upon completion of training and award of military occupational specialty 63B (Light Wheel Vehicle and Power Generator Mechanic), he was assigned to Germany and arrived on 31 October 1978. 4. On 27 October 1980, he was reassigned from Germany and transferred to Fort Sill, OK. He was promoted to his highest grade held SGT/E-5 on 4 November 1981. 5. At some point court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge Sheet) is not available for review. 6. The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, on 18 March 1982, the separation authority approved the applicant's request for discharge for the good of the service – in lieu of trial by court-martial. He directed the applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 794A (UOTHC Discharge Certificate). 7. On 23 June 1982, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for conduct triable by court- martial. He was reduced to the lowest enlisted grade and his service was characterized as UOTHC. He was credited with completing 4 years and 8 days of net active service. 8. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. 9. The applicant provides the documentation listed above and five-character letters attesting that he made some bad choices in life, but he has grown from his mistakes, he is a hard working intelligent person and deserves a second chance. 10. 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. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. 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 reason for his separation, and whether to apply clemency. The Board noted that the record does not document the specific misconduct that led to court-martial charges against the applicant. The Board found insufficient evidence of in-service mitigating factors and found the evidence of post-service achievements or letters of reference provided by the applicant insufficient in support of a clemency determination. 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 :xx :xx :xx 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 has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings 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. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to private E-1, in accordance with governing regulation. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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) AR20230001724 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1