ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  19 August 2019

	DOCKET NUMBER:  AR20160019434


APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions 
(UOTHC) discharge to an under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	DD Form 214 (Report of Separation from Active Duty), for the period ending 
21 March 1975

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, U.S. 
Code (USC), 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 joined the Army under the "Buddy System" and was recycled 
in basic training because of an illness.  He lost his buddy and was forced to be 
discharged early.  He served honorably for almost a year and would like to now set the 
record straight for him and his family.

3.  The applicant enlisted in the Regular Army on 15 February 1974.

4.  The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he 
was reported as absent without leave (AWOL) on or about 10 October 1974, was 
declared a deserter on or about 10 November 1974, and remained AWOL until he was 
returned to military control on or about 10 January 1975.

5.  The applicant's record does not contain his separation packet.  However, it does 
contain approval from the separation authority, dated 14 March 1975, to discharge the 
applicant under the provisions of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), chapter 10, for the good of the service.  He directed the applicant 
be issued an undesirable discharge.
6.  The applicant was discharged on 21 March 1975.  His DD Form 214 shows he was 
discharged under the provisions of Army Regulation 635-200, chapter 10, and his 
service was characterized as UOTHC.

7.  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 
information that would indicate the contrary.  

8.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not 
warranted.  The applicant’s contentions were carefully considered.  The Board applied 
Department of Defense standards of liberal consideration to the complete evidentiary 
record and did not find any evidence of error, injustice, or inequity.  He did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  Based upon his voluntary request for discharge in lieu of court-martial, the 
Board determined he admitted guilt to a criminal offense in which his command 
preferred charges that could have resulted with a BCD.  Additionally, because the 
applicant only completed a short term of honorable service prior to the lengthy AWOL 
offense, the Board agreed that the applicant's discharge characterization was warranted 
as a result of the misconduct.

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 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 635-200 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Paragraph 3-7b states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to Soldiers whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	b.  Chapter 10, in effect at the time, provided that a member who committed an 
offense or offenses under the Uniform Code of Military Justice, for which the authorized 
punishment included a punitive discharge, could submit a request for discharge for the 
good of the service at any time after court-martial charges were preferred.  
Commanders would ensure that an individual was not coerced into submitting a request 
for discharge for the good of the service.  Consulting counsel would advise the member 
concerning the elements of the offense or offenses, the type of discharge normally 
given under the provisions of this chapter, the loss of VA benefits, and the possibility of 
prejudice in civilian life because of the characterization of such a discharge.  An under 
other than honorable conditions discharge was normally considered appropriate.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records may grant clemency regardless of the court-martial 
forum.  However, the guidance applies to more than clemency from a sentencing in a 
court-martial; it also applies to any other corrections, including changes in a discharge, 
which may be warranted on equity or relief from injustice grounds.  

	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//

ABCMR Record of Proceedings (cont)	 AR20160019434

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