IN THE CASE OF:  

BOARD DATE:  10 January 2020

DOCKET NUMBER:  AR20170008171


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States), dated 3 May 2017
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 2 April 1973
*	DD Form 258A (Undesirable Discharge Certificate), dated 20 April 1973

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, in effect, in the 1970s he was in a drug infested unit in 
Germany.  He was a young kid and he was lucky to make it out of there alive.  It has 
bothered him for years.  He only had four months left to complete his tour.  He didn't 
dishonor anyone.

3.  The applicant enlisted in the Regular Army on 21 August 1970.  Upon completion of 
his initial entry training, he was assigned to the Republic of Germany on 7 January 
1971.

4.  The applicant accepted nonjudicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions: 

*	on 22 July 1971, for wrongfully sitting down on his post while posted as a 
sentinel, on or about 18 July 1971
*	on 13 September 1971, for being derelict in his duties, on or about 5 September 
1971
*	on 5 November 1971, for disobeying a lawful order from a noncommissioned 
officer (NCO), on or about 28 October 1971
*	on 3 December 1971, for disobeying a lawful order from a commissioned officer, 
on or about 25 November 1971
*	on 3 May 1972, for disobeying a lawful order from an NCO, on or about 26 April 
1972, and for recklessly damaging a government vehicle while drag racing 
through the motor pool, on or about 2 May 1972
*	on 10 October 1972, for disobeying a lawful order from a commissioned officer, 
on or about 5 October 1972
*	on 27 November 1972, for two counts of failing to go to his prescribed place of 
duty, on or about 24 November 1972 and on or about 26 November 1972

5.  The applicant's commander recommended his bar to reenlistment on 12 December 
1972, on an Army Europe (AE) Form 1107 (Bar to Enlistment/Reenlistment).  He noted 
the aforementioned instances of UCMJ and his additional violations of Article 134; 
Article 92 - possession of hash; disobeying orders; and Article 86 - AWOL.  His 
commander further stated "This individual requires constant supervision in virtually 
every task given; his personal appearance is nearly always gross, including wearing of 
dirty or soiled clothing without patches or insignia; he is a known user of narcotics; and 
displays an indifferent, sometimes hostile attitude towards the United States Army.  
Every attempt at rehabilitation to date has failed because of his belligerent and 
nonchalant manner."

6.  The applicant's Deputy Commander approved his bar to reenlistment on                 
28 December 1972.  He also noted the remark "Not recommended for further service" 
would be added to his DA Form 20 (Enlisted Qualification Record).

7.  The Battalion Surgeon wrote a statement on 9 March 1973, noting the following:

	a.  On 21 November 1972 [the applicant, SSN], was referred to my office by First 
Sergeant.

	b.  The [applicant] and I discussed his personal drug abuse.  He reported occasional 
Hashish and Marijuana use during the past two years.  He denied abuse of oral or 
intravenous drugs.  He expressed an anxiety about drug abuse and refused counseling.

	c.  I related medical problems of smoking, assured him that counseling would be 
available in the future if necessary and arranged for twice weekly drug urine collections 
for drug analysis.  The [applicant] never returned for drug-associated problems or urine 
collection.

8.  The applicant's record is void of a separation packet.  However, his record contains a 
DD Form 214 that shows he was discharged on 2 April 1973, under the provisions of 
Army Regulation 635-200, Chapter 13.  His DD Form 214 confirms his service was 
characterized as UOTHC and he was issued an Undesirable Discharge Certificate.  

9.  The Board should consider the applicant's statement 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 DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record and 
length of service, the frequency and nature of his misconduct, a bar to reenlistment, the 
statement of the Battalion Surgeon, the absence of a separation packet and the reason 
for his separation.  The Board found insufficient evidence of in-service mitigation to 
overcome the misconduct and the applicant provided no evidence of post-service 
achievements or letters of reference in support of a clemency determination.  Based on 
a preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.




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.

ADMINISTRATIVE NOTE(S):

Not Applicable









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 administrative 
separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides that an under honorable conditions (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 13, in effect at the time, contained the policy and outlined the procedures 
for separating individuals for unfitness.  It provided that individuals would be discharged 
by reason of unfitness when their records were characterized by one or more of the 
following:  (a) frequent incidents of a discreditable nature with civil or military authorities, 
(b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or 
(e) an established pattern showing dishonorable failure to pay just debts.  This 
regulation prescribed that an undesirable discharge was normally issued unless the 
particular circumstances warranted an honorable or a general discharge.

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)	 AR20170008171

3

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

1
ABCMR Record of Proceedings (cont)	 AR20170008171


5
ABCMR Record of Proceedings (cont)	AR20170008171


4