IN THE CASE OF: BOARD DATE: 22 November 2023 DOCKET NUMBER: AR20230004000 APPLICANT REQUESTS: reconsideration of his previous request for upgrade of his under other than honorable conditions (UOTHC) characterization of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) with self-authoredstatement, dated 30 November 2022 •Military Service Records (12 pages), dated 18 October 1988 to 30 November1988 •DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 9 December 1988 FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20080013774 on 13 November 2008. 2.The applicant’s full military service record is not available for review in this case. Afair and impartial review of this case will be conducted with the previous record ofproceedings and service records provided by the applicant. 3.The applicant states, in effect, his commander was aware of the stressful situationhe was going through at the time. His mother was being abused at home. Had hiscommander given him the freedom to contact his mother, things might have beencompletely different. Once the applicant was assured his mother was okay, he resumedhis duties as a Soldier with no further issues. He signed documents stating he agreed toa “less than honorable discharge.” He was told he would go to jail if he did not agree.He made the logical choice at the time. 4.The applicant enlisted in the Regular Army on 26 June 1985. He subsequentlyreenlisted on 30 March 1988. The highest rank he attained was specialist/E-4. 5.The applicant accepted non-judicial punishment under the provisions of Article 15, ofthe Uniform Code of Military Justice, on 30 August 1988 for the wrongful use ofmarijuana on or about 20 June 1988. His punishment included reduction to private/E-1,forfeiture of $335.00 pay for two months, and 45 days of extra duty. He appealed thepunishment, stating the drug was blown into his nose while he was sleeping, and hiscommander stereotyped him as a con-man and street hood. The appeal was denied. 6.Court-martial charges were preferred against the applicant on 18 October 1988. Therelevant DD Form 458 (Charge Sheet) shows the applicant was charged with thefollowing charges and specifications: •missing movement to the National Training Center, on or about 14 September1988 •two specifications of behaving with disrespect towards his superiorcommissioned officer, on or about 13 September 1988 and 14 September 1988 •failing to obey a lawful command from his superior commissioned officer, on orabout 13 September 1988 7.The applicant consulted with legal counsel on or about 3 November 1988. a.He was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a UOTHC discharge, and the procedures and rights that were available to him. b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. 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 c.He was advised he could submit any statements he desired in his behalf. He didnot provide a statement. 8.His immediate commander recommended disapproval of the request for discharge inlieu of courts-martial, stating an approved discharge would send a signal to otherSoldiers that the chain of command does not aggressively punish misconduct whichcould cause further disciplinary problems. 9.The applicant’s intermediate commanders recommended approval of the request fordischarge in lieu of trial by court-martial, further recommending a servicecharacterization of UOTHC. 10.The separation authority approved the applicant's request for discharge on 30 November 1988. He directed the applicant be reduced to the lowest enlisted gradeand the issuance of a DD Form 258A (UOTHC Discharge Certificate). 11.The applicant's DD Form 214 shows he was discharged on 9 December 1988,under the provisions of Army Regulation 635-200, Chapter 10, for the good of theservice-in lieu of court-martial, with separation code KFS and reenlistment code RE-3and RE-3c. His DD Form 214 confirms his characterization of service was UOTHC. Hewas credited with 3 years, 5 months, and 14 days of net active service. 12.The ABCMR reviewed the applicant's petition for an upgrade of his discharge on13 November 2008. After careful consideration, the Board determined the evidencepresented did not demonstrate the existence of a probable error or injustice.Accordingly, his request for relief was denied. 13.Discharges under the provisions of Army Regulation 635-200, Chapter 10, arevoluntary requests for discharge for the good of the service, in lieu of a trial by court-martial. An UOTHC character of service is normally considered appropriate. 14.The Board should consider the applicant's argument and/or evidence in accordancewith the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was 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. One potential outcome was to grant partial relief to correct the applicant’s record for his continuous honorable service for his first enlistment but deny his discharge upgrade. However, upon careful review of the applicant’s petition and available military records, the Board majority determined the applicant attempted to seek assistance from his chain of command regarding his mental health issues and was refused. The Board determined there is sufficient evidence of in-service mitigation to overcome the misconduct. Under liberal consideration, the Board noted the applicant’s previous honorable service prior to his misconduct warrant an upgrade of his discharge. 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 a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: re-issuing the applicant a DD Form 214 for the period ending 9 December 1988 showing his characterization of service as honorable. Microsoft Office Signature Line... ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity. The applicant has the burden of proving anerror or injustice by a preponderance of the evidence. It is not an investigative body. 2.Army Regulation 635-5 (Personnel Separations), 15 August 1979, in effect at thetime did not provide for an additional entry for continuous honorable active service,when a Soldier who previously reenlisted without being issued a DD Form 214 wasdischarged with any characterization of service except honorable. However, an interimchange, published on 2 October 1989 does provide for such an entry. 3.Army Regulation 635-200, in effect at the time, set forth the basic authority for theseparation of enlisted personnel. a.Chapter 10 of that regulation provides, in pertinent part, that a member who hascommitted 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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. c.Paragraph 3-7b provides that a general discharge is a separation from the Armyunder honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemencydeterminations. Clemency generally refers to relief specifically granted from a criminalsentence. 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, 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//