ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
	BOARD DATE:  11 June 2019

	DOCKET NUMBER:  AR20170012793


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:  
DD Form 149 (Application for Correction of Military Record).

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 states he was very young, only 20 years old, and made a bad decision 
due to his drinking.  At the time he had also just returned from Thailand supporting 
operations in Vietnam.  He has tried to lead a productive life since leaving the Army.  He 
understands what he did at the time was wrong and he regrets his actions.  

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 18 February 1969. 

	b.  He served in Thailand from 21 September 1969 to 4 June 1970.

	c.  On 29 December 1969, he accepted nonjudicial punishment for absenting himself 
from his appointed place of duty without authority. 

	d.  On 23 October 1970, he accepted nonjudicial punishment for absenting himself 
from his appointed place of duty without authority and being drunk on duty.  

	e.  On or about May 1971, court-martial charges were preferred against the 
applicant.  His DD Form 458 (Charge Sheet) is unavailable for the Board to review.  

	f.  On 1 June 1971, the separation approval authority disapproved his request for 
discharge for the good of the service.  The request for discharge for the good of the 
service and the chain of command recommendation are unavailable for the Board to 
review. 

	g.  He was convicted by special court-martial on 16 June 1971, however the 
disposition is unavailable for the Board to review.  The special court-martial found him 
guilty of:

*	behaving with disrespect towards his superior commissioned officer
*	operating a passenger car while drunk
*	failing to obey a lawful order from a noncommissioned officer
*	failing to obey a lawful order from a commissioned officer
*	disorderly conduct

   h.  On 14 April 1972, the U.S. Army Court of Military Review issued a court-martial 
order correcting certificate which reflected that he was found guilty of all specifications 
and additional charges.  

	i.  On 15 August 1972, he was discharged from active duty under the provisions of 
Army Regulation (Personnel Separations – Enlisted Personnel) 635-200 with a 
separation program number of 292 (Other than desertion – court-martial).  His DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) shows he 
completed 3 years, 1 month, and 22 days of active service.  It also shows he was 
awarded or authorized the:

*	National Defense Service Medal
*	Vietnam Service Medal
*	Vietnam Campaign Medal

4.  By regulation, an enlisted person will be given a bad conduct discharge pursuant 
only to an approved sentence of a general or special court-martial, after completion of 
appellate review and after such affirmed sentence has been ordered duly executed.  
The applicant’s DD Form 214 shows he was separated with an UOTHC.

5.  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:

After review of the application and all evidence, to include the DoD guidance on liberal 
consideration when reviewing discharge upgrade requests, the Board determined there 
is insufficient evidence to grant relief.  Based upon the short term of service completed 
prior to a pattern of misconduct, as well as a lack of character evidence submitted by 
the applicant to show that he has learned and grown from the events leading to his 
separation, the Board concluded that the characterization of service given at the time of 
discharge was appropriate. 

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 Separations), in 
effect at the time, sets set forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a 
separation with honor.  Issuance of an honorable discharge will be conditioned upon 
proper military behavior and proficient performance of duty during the member’s current 
enlistment of current period of service with due consideration for the member’s age, 
length of service, grade, and general aptitude.  

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation 
from the Army under honorable conditions of an individual whose military record is not 
sufficiently meritorious to warrant an honorable discharge.  

	c.  Paragraph 1-9f (Undesirable Discharge) states an undesirable discharge is an 
administrative separation from the service under condition other than honorable. 

	d. Paragraph 11-2 (Bad Conduct Discharge) states an enlisted person will be given 
a bad conduct discharge pursuant only to an approved sentence of a general or special 
court-martial, after completion of appellate review and after such affirmed sentence has 
been ordered duly executed.  

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 the discharge, which 
may be warranted based on equity, or relief from injustice.  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 
based on 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.  Changes to the narrative reason for discharge and/or an upgraded 
character of service granted solely on equity, 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 upgrade service characterization.  


ABCMR Record of Proceedings (cont)	 AR20170012793

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