IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230003193 APPLICANT REQUESTS: an upgrade of his characterization of service from under other than honorable conditions to honorable and change his narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record), undated FACTS: 1. The applicant states: a. He served in the Marine Corps for 4 years and 6 months, deployed to Iraq, and was honorably discharged. He enlisted in the U.S. Army and deployed to Iraq and Afghanistan. During his deployment to Afghanistan, he received divorce papers. He took the divorce papers to S-1 to update his records and stop his basic allowance for housing (BAH) pay. His S-1 informed him that he was missing paperwork and unable to do anything. He committed a crime by continuing to receive BAH. He admits that the crime was unbecoming of him, his leadership and military career. b. He was told to get an attorney. A week later he was informed that his command was pursuing a court martial which would result in him receiving a dishonorable discharge, demotion to private, forfeiture of his pay, and possible jail time. He was offered a plea deal which would result in no trial, demotion to private, and an other than honorable discharge. He took the plea deal but thought the punishment was too excessive for a crime in the amount of $6,000. He paid half of the debt, and the other half was paid a year later. c. After his discharge he has remained employed and continued his education. He acknowledges that he committed a crime and deserved to be punished but does not agree with his punishment being an under other than honorable discharge. 2. On 29 May 2008, the applicant enlisted in the Regular Army. The applicant has service in Iraq from 8 August 2009 to 2 September 2010; and service in Afghanistan from 17 July 2011 to 31 May 2012. The applicant reenlisted on 23 July 2012. 3. A DD Form 458 (Charge Sheet), 23 April 2013, shows the applicant was charged with violation of the Uniform Code of Military Justice (UCMJ), Article 121, in that he did at or near Fort Stewart, GA between on or about 1 June 2011, and on or about 1 December 2012, on divers occasions, steal BAH, of a value of more than $500, the property of the U.S. Army. 4. On 14 May 2013, the applicant consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an Under Other Than Honorable Conditions Discharge if this request is approved, and of the procedures and rights available to him. Following this consultation, the applicant requested discharge under the provision of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10. In his request, he acknowledged: a. He understood that submitting this request for discharge he acknowledge that he is guilty of the charges against him or of a lesser included offenses therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge. b. He had been advised and understood the possible effects of an under other than honorable discharge. As a result of the issuance of such a discharge he will be deprived of many or all Army benefits that he may be ineligible for many, or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a veteran under both state and federal law. c. He also understood that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge. He further understood that there is no automatic upgrading or review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wish review of his discharge. He realizes that the act of consideration by either board does not imply that my discharge will be upgraded. d. He also understood that he may, up until the date the discharge authority approves his discharge, withdraw his acceptance of this discharge. 5. On 14 May 2013, the immediate and intermediate commanders recommended approval of the applicant's request for discharge and the issuance of an Other Than Honorable Conditions Discharge Certificate. 6. On 6 June 2013, consistent with the chain of command recommendations, the separation authority approved the applicant's discharge from the service under the provisions of AR 635-200, Chapter 10 and ordered the issuance of an Other Than Honorable Conditions Discharge Certificate and the applicant's reduction to private/E-1. 7. The applicant was discharged from active duty on 2 July 2013 under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of court-martial, with the issuance of an under other than honorable conditions certificate. His DD Form 214 shows: a. He completed 5 years, and 29 days of net active service this period. b. He was awarded or authorized the Army Commendation Medal (2nd Award), Army Achievement Medal (2nd Award), Meritorious Unit Commendation, Army Good Medal (2nd Award), National Defense Service Medal, Afghanistan Campaign Medal with two bronze service stars, Global War on Terrorism Service Medal, Iraq Campaign Medal with two bronze service stars, Army Service Ribbon, Overseas Service Ribbon (3rd Award), North Atlantic Treaty Organization Medal, Combat Action Badge, Driver and Mechanic Badge with driver wheeled vehicles clasp. c. He was issued the Separation Code “KFS” and the Re-entry Code “4”. d. Item 18 (Remarks) listed his reenlistment periods as "20120723-20130702," but did not list his continuous honorable service. 8. A letter from the Army Discharge Review Board (ADRB), dated 9 September 2015, informed the applicant that, after careful consideration of his military records and all other available evidence, the ADRB determined his request for a change in the character and/or reason for his discharge was denied. 9. By regulation (AR 635-200), a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 10. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. 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 concurs with the corrections described in the Administrative Note(s) below. 2. A majority of the Board noted the applicant’s deployment history as well as his honorable service prior to his final enlistment and the nature of the misconduct that led to his discharge. A majority of the Board also noted the applicant’s statement that he repaid all BAH funds he was not authorized to receive. A majority of the Board found this evidence sufficient as a basis for clemency and found partial relief is warranted. A majority of the Board determined the applicant’s character of service should be changed to under honorable conditions (general), but also determined the reason for his discharge was not in error or unjust. 3. The member in the minority found the applicant’s misconduct was significant and found insufficient evidence of in-service mitigating factors as well as insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the member in the minority determined the character of service the applicant received upon separation and the reason for his separation were not in error or unjust. 4. The Board concurred with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X 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 reissuing his DD Form 214 for the period ending 2 July 2013 to show his character of service as under honorable conditions (general) and to incorporate the correction described in Administrative Note(s) below. 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 any relief in excess of that described above. 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 omitted administrative entries in the Remarks block. As a result, amend the DD Form 214 by adding in item 18 the entry “Continuous honorable service from 20080529 to 20120722.” 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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19. 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. 3. 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/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. 4. Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) to 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). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003193 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1