ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  25 March 2019

	DOCKET NUMBER:  AR20170018796


APPLICANT REQUESTS:  The applicant requests his under other than honorable 
conditions (UOTHC) discharge be upgraded to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 the UOTHC discharge that he received has tremendously 
impacted him and his family for the last 22 years and he desires that the Board upgrade 
his discharge.  

3.  On 29 January 1993, at the age of 21, he enlisted in the Regular Army for 3 years.  
He completed the training requirements and he was awarded military occupational 
specialty 11C (Indirect Fire Infantryman.  On 24 May 1993, he was assigned to Fort 
Hood, TX. 

4.  His record provides five General Counseling Statements, dated between August and 
November 1994 that show on: 

    a.  1 August 1994, the applicant was commended for his performance; his 
professional appearance and work performance was astounding, the applicant and 
others brought the standards up 100%, due to dedication and personal pride.  

    b.  17 August 1994, the applicant was counseled for monetary difficulties, his leader 
recently found the applicant’s wife was living in San Antonio and sympathized with the 
emotional heart ache and monetary strain this was causing; however the applicant was 
still obligated to pay his bills in a timely manner;  he was required to pay his future bills 
on time and advised to contact his leader if he had future issues paying his bills so that 
the chain of command could be notified and determine what type of assistance they 
could assist. 

    c.  18 August 1994, the applicant was counseled due to the receipt of a letter of 
non-support of his dependent, indicating the he had not paid his spouse her basic 
allowance for quarters (BAQ) since they separated on 1 June 1994.   His spouse sought 
assistance from legal for repayment.  His leader stated, after talking with the applicant 
he was going to recommend removing the applicant from military service until he 
provided proof of payment to his spouse so the chain of command could contact legal 
and provide supporting evidence that his spouse was paid some money.  
    
    d.  12 October 1994, the applicant was counseled for missing morning formation. 
    
    e.  1 November 1994, he was counseled by a new squad leader for missing 
formation and not reporting to work until 1000 hours and advised continued conduct of 
this nature may result in disciplinary action and or separation. 

5.  A sworn statement, dated 2 February 1995, signed by a member of the applicant’s 
chain of command and authenticated by the adjutant shows the applicant left his unit in 
an absent without leave (AWOL) status on 13 December 1994.  On an unknown date he 
mailed his identification card and room keys back to the unit, indicating he had no intent 
to return and therefore on 13 January 1994, he was dropped from Army rolls. 

6.  A Duty Status Change document shows, on 26 April 1995, the applicant was 
apprehended by civilian authorities in San Antonio, TX, and was returned to military 
control and transferred to the Personnel and Support Battalion, Fort Sill, OK, on 28 April 
1995. 

7.  On 3 May 1995, court-martial charges were preferred against the applicant for being 
AWOL from 13 December 1994 through 26 April 1995.

8.  On 4 May 1995, he consulted with counsel and voluntarily requested discharge 
under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), 
in lieu of trial by court-martial.  He acknowledged he understood the elements of the 
offense he was being charged with and that he had been advised of his rights.  He 
acknowledged his available rights and indicated he was not submitting statements in his 
own behalf and he did not desire a physical evaluation prior to separation.  

9.  On 1 June 1995, the applicant’s immediate and intermediate commanders 
recommended approval of the applicant’s request for discharge.  The immediate 
commander noted that the applicant indicated he went AWOL for personal reasons.  
The immediate commander believed the applicant had become disillusioned with the 
military and retention was not in the best interest of the Army.

10. On 5 June 1995, the applicant’s request for discharge was reviewed by the Criminal 
Law Division, Fort Sill, and was found legally sufficient for further processing. 

11.  On 5 June 1995, the appropriate authority approved the applicant's request for 
discharge in lieu of trial by court-martial and directed his reduction to private/pay grade 
E-1 and the issuance of an UOTHC discharge. 

12.  On 28 June 1995, the applicant was discharged accordingly.  His DD Form 214 
shows he completed 2 years and 15 days of net active service this period, he had 134 
days of lost time, and no foreign service.  His DD Form 214 also shows he was awarded 
or authorized the: 

*	National Defense Service Medal
*	Army Service Ribbon
*	Expert Marksmanship Qualification Badge with Grenade Bar 
*	Expert Marksmanship Qualification Badge with Mortar Bar
*	Marksman Marksmanship Qualification Badge with Rifle Bar

13.   Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-
lieu of trial by court martial.  In a case in which an UOTHC is authorized by regulation, a 
member may be awarded an honorable or general discharge, if during the current 
enlistment period of obligated service he has been awarded a personal decoration or if 
warranted by the particular circumstances of a specific case.

14.  His record shows he was private first class and successful Soldier until around the 
time he ran into marital problems and his wife relocated which resulted in two 
counseling’s within a 2 day timeline for financial strain causing his failure to pay his bills 
in a timely manner and alleged failure to provide spousal support.  Based on the 
available evidence we are unable to determine the final disposition of whether he was in 
fact providing spousal support or continued financial hardship.  His AWOL took place 
within approximately 120 day timeline from his separation and although the available 
evidence shows counseling’s addressing his finance and failure to report to 
formation/work, it is void of evidence showing his chain of command assisted him with 
his personal or financial hardship.  

14.    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 
guidance.


BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  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.  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.


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

      a.  Chapter 10 states a member who has committed 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.  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, an UOTHC discharge is 
normally considered appropriate. 

      b.  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. 

      c.  A 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.  

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 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 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.  
      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)	 AR20170018796

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