IN THE CASE OF: BOARD DATE: 19 September 2023 DOCKET NUMBER: AR20230002181 APPLICANT REQUESTS: Upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and restoration of his rank prior to separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 293 (Application for the Review of Discharge) • In-service personnel records • Character Reference Letters (21) • Various civilian Identification Cards • Civilian education, achievement, and certification documents 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 that his discharge was inequitable because it was based on an isolated incident in an otherwise spotless career, with more than seven years of impeccable service. He is appealing for reconsideration of his discharge status and restoration of his rank due to his service and a U.S. Army magistrate had acquitted him. 3. The applicant enlisted in the Regular Army on 18 February 1982, and voluntarily extended his enlistment on 11 July 1984. He reenlisted on 28 August 1987. The highest grade he attained was E-6. 4. Before a civilian court on 28 October 1988 at the U.S. District Court, Eastern District, NY, the applicant was found guilty of aiding and abetting the trafficking of cocaine, on or about 31 October 1987. The court sentenced him to 10 years’ incarceration with 5 years of supervised release, and $50.00 in court fees. He was released on bail pending the determination of his appeal. 5. The U.S. Court of Appeals for the Second Circuit affirmed the findings and sentence on 15 August 1989. He was ordered to surrender himself to the U.S. Marshall for the Eastern District of [Name]. 6. On 22 September 1989, the applicant underwent a mental status evaluation. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 7. The applicant's immediate commander notified him on 28 December 1989, that he was initiating actions to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c, for commission of a serious offense. The immediate commander indicated that he was recommending an under other than honorable conditions discharge and advised the applicant of his rights. 8. The applicant consulted with legal counsel and acknowledged he had been advised of the basis for the contemplated separation action. Following his consultation, he requested the right to personally appear before, and to have his case considered by a board of officers. a. He voluntarily waived consideration of his case by an administrative separation board contingent on him receiving a characterization of service no less favorable than under honorable conditions (general). He also stated if the separation authority refuses to accept the conditional a waiver of a hearing before an administrative separation board, that his case would be referred to an administrative separation board. He further declined to submit a statement in his own behalf. b. He acknowledged he understood that as a result of issuance of a discharge UOTHC, he may be ineligible for many or all benefits as a Veteran under Federal and State laws and that she could expect to encounter substantial prejudice in civilian life. 9. The applicant's commander formally recommended his separation under the provisions of AR 635-200, Chapter 14, for misconduct. As the specific reasons, his commander cited the applicant’s civil conviction for aiding and abetting in a drug case and sentence of 10 years in prison. 10. On 12 January 1990, the applicant was apprehended and taken to the U.S. Marshall, eastern District of [Name] for confinement. 11. On 18 January 1990, the Deputy Staff Judge Advocate General conducted a legal review of the applicant’s Chapter 14 separation action and found it to be legally sufficient for further processing. The applicant is currently serving 10 years in civilian confinement for smuggling cocaine into the United States. 12. On 28 March 1990, a board of officers convened to determine if the applicant should be eliminated from service. The Board determined that in view of the circumstances of the discharge, and the fact that the applicant used his military position, he should be separated with an UOTHC service characterization. 13. The separation authority approved the administrative separation board’s finding and recommendation and ordered the applicant discharged with an under other than other tan honorable conditions discharge. 14. The applicant was discharged on 13 April 1990, in the rank of E-1. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense. His service was characterized as UOTHC. He completed 6 years, 11 months, and 21 days of net active service this period with 90 days of lost time. He was awarded or authorized the: • Army Service Ribbon • Overseas Service Ribbon • Army Achievement Medal (2nd Oak Leave Cluster) • Expert Field Medical Badge • Army Good Conduct Medal (2nd Award) • Noncommissioned Officers Professional Development Ribbon 15. The applicant's DD Form 214 does not show his continuous honorable active service period information that is required for members who honorably served their first term of enlistment [see Administrative Notes]. 16. The applicant petitioned the Army Discharge Review Board requesting upgrade of his UOTHC discharge. On 3 April 1996, the Board voted to deny relief and determined that his discharge was both proper and equitable. 17. The applicant provides the following (provided in entirety for the Board): a. In-service personnel records that detail accomplishments and events throughout his military career. b. Character reference letters (21) that collectively attest to his work ethic, professionalism, positive attitude, reliability, trustworthiness, outstanding reputation, and his moral character. c. College degree, registered nurse certification, and certificates of achievement that show his training, acquired skills and accomplishments following his separation. 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. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant’s military records, the Board found that relief was partially warranted. 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. a. The applicant was convicted by civil court of smuggling/trafficking illegal drugs into the United States and was sentenced to a 10-year prison sentence. Accordingly, his chain of command initiated separation action against him. All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. His discharge appears to be appropriate based on the quality of his service. His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. b. The Board further noted that the applicant provides multiple character reference letters that collectively attest to his work ethic, professionalism, positive attitude, reliability, trustworthiness, outstanding reputation, and his moral character, as well as various post-discharge professional accomplishments including a college degree, registered nurse certification, and certificates of achievement that show his training, acquired skills and accomplishments following his separation. However, the Board determined his post discharge achievements and letters do not outweigh the serious misconduct of drug trafficking. The Board further noted that he was appropriately and correctly reduced to the lowest enlisted grade as a result of receiving an under other than honorable conditions discharge. Based on a preponderance of evidence, the Board determined that the character of service and grade the applicant received upon separation were not in error or unjust. c. Nevertheless, the applicant enlisted in the Regular Army on 18 February 1982 and reenlisted on 28 August 1987. His first enlistment was honorable. In those cases when an enlisted member receives an under other than honorable conditions discharge after having reenlisted once or more, the regulation allows for the listing of the Soldier’s continuous honorable service from first date of enlistment to the date prior to last reenlistment. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF xx: xx: xx: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to the Remarks Block of his DD Form 214 the entries • SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE • CONTINUOUS HONORABLE SERVICE FROM 19820218 UNTIL 19870827 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge to fully honorable. 9/19/2023 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 635-8 (Separation Processing and Documents) provides: for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "Honorable, enter Continuous Honorable Active Service From" (first day of service for which DD Form 214 was not issued) until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. It states that action will be initiated to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense. First time offenders below the grade of sergeant, and with less than 3 years of total military service, may be processed for separation as appropriate. 4. 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/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//