IN THE CASE OF: BOARD DATE: 7 October 2021 DOCKET NUMBER: AR20210005077 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge * to change his narrative reason for separation, separation code, and reentry code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 293 (Application for the Review of Discharge) * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Two Letters/Character References FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 indicated on his DD Form 293 and/or DD Form 149 that other mental health issues/conditions were related to his request and he requests an upgrade to an honorable discharge. He states in his self-authored statement: a. He is requesting an upgrade to a general discharge. He entered the Army because he wanted to serve his country and be a better man for his family. His initial contract was for four years. After completing a successful tour at Fort Benning, GA, he transferred to Germany and was promoted to the grade of E-4. Being so far from home started to take a toll on his family relationships, which impacted his daily performance. Unfamiliar with services available to him and being new to a command, he did not know how to get the assistance and counseling that he needed. Because he did not speak up or get help, he put himself in a situation which impacted his ability to be the Soldier who so many counted on. b. He appeared before an Article 15, under the Uniform Code of Military Justice (UCMJ), resulting in his UOTHC discharge. Immediately following his discharge, he returned home with the training and discipline and led a successful life. He regrets some of his decisions while serving in the Army, but he does not feel that one mistake should continue to follow him for the rest of his life. He had run into several roadblocks based on the type of discharge he received. He was unaware of the options to request an upgrade until recently. He respectfully requests the Board's consideration in upgrading his discharge. 3. On 4 January 1991, the applicant enlisted in the Army for a term of 4 years, at the age of 19 years. 4. After completing one station unit training (OSUT), he was assigned to Fort Benning, GA, and on 6 January 1993, he was assigned to Germany in military occupational specialty 13B (Cannon Crewmember). 5. On 14 August 1993, a military police investigation (MPI) was initiated in which the applicant was a suspect in the larceny of another Soldier's personal property. The MPI listed the applicant's grade as E-4. It shows a Soldier (victim) secured his barrack's room door, but upon his return, his door was open and he found several items missing from his room. The applicant consented to his commander and First Sergeant searching his barracks room. The commander found the missing items in the applicant's wall- locker. The applicant stated that he did not take the items but the items were given to him to hold for someone. The applicant was also the subject of an investigation conducted by the company regarding damage to a barracks room door (destruction to government property). 6. On 1 September 1993, court-martial charges were preferred against the applicant for one specification each of: * Article 108, UCMJ, willfully damaging a barrack's room door of a value in excess of $100.00, damage being in the sum of about $80.00 * Article 121, UCMJ, stealing a stereo receiver, a cassette deck, seven compact disks, five audio records, and two audio cassettes of a value of about $750.00, the property of Private First Class * Article 134, UCMJ, concealing stolen property (same property of Article 121, UCMJ, charge) 7. On 7 September 1993, the Staff Judge Advocate (SJA) provided pretrial advice to the court-martial convening authority and recommended he refer the case to a special court-martial empowered to adjudge a bad-conduct discharge. On the same date, the convening authority referred to case in accordance with the SJA's recommendation. 8. On 8 September 1993, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10, and he elected to submit statements on his own behalf. He submitted: a. Personal Statement in which he stated/explained he: * had been a team player, committed to excellence, dedicated to the mission * had been a productive Soldier since his arrival in Germany * provided a statement from his supervisor attesting to the caliber of Solider he was * regretted the offenses he was charged with and made no excuses for his actions * realized he brought discredit upon himself, his family, the U.S. Army, and his country * requested the opportunity to be a productive member of society * was fully aware of the serious nature and consequences of the charges against him b. Character reference from Staff Sergeant (SSG) who stated the applicant worked for the Telecommunication Center for a period of four months. He was dependable in opening and closing the center. He was trustworthy. On numerous occasions, he operated the center without noncommissioned officer (NCO) supervision. He conducted his duties in a most professional manner. He possessed the potential to become an NCO. 9. The chain of command and the SJA recommended approval and on 16 September 1993, the appropriate separation authority approved the applicant's request directing he be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate. The applicant was the rank/grade of Private First Class/E-3 at the time his discharge was approved. 10. On 23 September 1993, he was discharged accordingly. He completed 2 years, 8 months, and 20 days of his 4-year contractual obligation. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * He was awarded or authorized: o Army Service Ribbon o Hand Grenade Sharpshooter Marksmanship Qualification Badge o M-16 Rifle Marksman Marksmanship Qualification Badge * Separation Authority: AR 635-200, Chapter 10 * Character of Service: Under Other Than Honorable Conditions * Separation Code: "KFS" * Reentry Code: "3" * Narrative Reason for Separation: Discharge in Lieu of Trial by Courts-Martial 11. Although his DA Form 2-1 (Personnel Qualification Records – Part II) shows the highest rank the applicant attained was Private First Class/E-3), other documents in his record, i.e., MPI and SSG statement, indicate he was a Specialist/E-4 at one time during his service. 12. The applicant provided Two Letters/Character References attesting to him being an exceptional/good Soldier and he suffered from a knee injury, depression, anger, trust issues, and the inability to adjust to military life. 13. AR 635-200, chapter 10, provides for a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the UCMJ and Manual for Courts-Martial (MCM) included a bad conduct or dishonorable discharge (punitive discharge). Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. A medical examination is not required under chapter 10, but may be requested in writing. A Soldier to be processed under the provisions of chapter 10 who requests a medical examination will be required to undergo a mental status evaluation. According to the MCM, for the following offenses punishments included a punitive discharge: * Article 108, UCMJ –– Military property of the U.S. –– sale, loss, damage, destruction, or wrongfl disposition; * Article 121 UCMJ –– Larceny and wrongful appropriation; and * Article 134 –– Stolen property –– knowingly receiving, buying, concealing 14. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. 15. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Psychologist reviewed this case. Documentation reviewed included the application and supporting documents and his separation military documentation. No medical records were available for review. After review of all available information, it is the opinion of the Agency psychologist that there is insufficient evidence to support that the applicant had a behavioral health condition at the time of service. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's claim regarding his mental health and the review and conclusions of the ARBA Psychologist. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the ARBA Psychologist regarding the evidence being insufficient to support a conclusion that his misconduct was mitigated by a behavioral health condition. Based on a preponderance of evidence, the Board determined the reason for the applicant's separation and associated codes and the character of service he received were not in error or unjust. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative 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 was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1969 (Revised Edition) included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. e. A medical examination is not required under chapter 10, but may be requested in writing. A member to be processed under the provisions of chapter 10 who requests a medical examination will be required to undergo a mental status evaluation. f. Paragraph 5-3, Secretarial Authority, states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. 3. Per Manual for Courts-Martial Article 108, UCMJ –– Military property of the U.S. –– sale, loss, damage, destruction, or wrongful disposition; Article 121 UCMJ –– Larceny and wrongful appropriation; and Article 134 –– Stolen property –– knowingly receiving, buying, concealing, maximum punishments included a punitive discharge. 4. AR 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives) and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It provides SPD Code "KFS" is designated as the code for Authority AR 635-200, chapter 10 and Reason "In Lieu of Trial by Court-Martial." SPD Code" KFF" is designated as the code for Authority AR 635-200, paragraph 5-3 and Reason "Secretarial Authority" for a voluntary discharge. 5. AR 601-210 (Personnel Procurement –– Regular Army and Army Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment of persons with or without prior service in the Regular Army and the U.S. Army Reserve. Table 3-6 provided the reenlistment eligibility codes: * RE-1: Fully qualified for enlistment * RE-3: Not qualified for enlistment but disqualification is waivable 6. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005077 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005077 7 ABCMR Record of Proceedings (cont) AR20210005077 6