ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  2 April 2019

	DOCKET NUMBER:  AR20180000262


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

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)
*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214  (Certification Release of Discharge)
*	DD Form 215 (Correction to Certification Release of Discharge)

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 that the discharge was inequitable because it was based on one 
isolated incident in over 51 months of service with no other adverse action.  He feels 
that he was a lower rank, he would have been given rehabilitation and remained in the 
Army, but he did not have that option.

3. On 28 November 1979, the applicant joined the Regular Army and was assigned to 
Fort Polk Louisiana as a Combat Construction Specialist (12B).  

4.  The applicants records are absent of a separation packet; however the applicant 
submitted a request for characterization upgrade to the Army Discharge Review Board 
(ADRB).  The packet indicates:

	a.  On 17 April 1984, the applicant was notified of proposed discharge action 
under the provisions of Chapter 14, AR 635-200 and advised of his rights.

	b.  On 18 April 1984, the applicant was cleared for separation by mental and 
physical examination.

	c.  On 19 April 1984, the applicant consulted with legal and counsel and waived 
consideration, personal appearance, and representation by counsel before a board of 
officers.  He did not submit a statement in his behalf.

	d.  On 23 April 1984, the unit commander recommended applicant for discharge 
for misconduct-abuse of illegal drugs.

	e.  On 7 August 1984, the Discharge approval authority approved the discharge 
and directed separation under other than honorable conditions.

5.  On 13 June 1984, he was discharged accordingly, his service was characterized as 
UOTHC.  His DD 214 shows he completed 4 years, 6 months, and 16 days of net active 
service and 1 year 7 months Foreign Service.  His awards and decorations are the 
Army Service Ribbon, Overseas Service Ribbon, and Good Conduct Medal and reflects 
the award of the Sharpshooter qualification Badge for the M-16 rifle and expert for the 
Hand Grenade.  

6.  22 April 1987, the applicant submitted a request to change the character of 
discharge to ADRB.  The board said in effect:  After careful consideration of your 
military records and all other available evidence, the board has determined that you 
were properly and equitably discharged.

7.  Army Regulation 635-200 (Personnel Separations) provides for separation due to 
patterns of misconduct which is prejudicial to good order and discipline and provides 
rehabilitation is waived when the approval authority determines it would not be in the 
best interest of the Army and a discharge under other than honorable conditions is 
normally considered appropriate for separations under the provisions of Chapter 14.  
The separation authority may direct a general discharge if such is merited by the 
Soldier’s overall record.  Characterization of service as honorable is not authorized 
unless the Soldier’s record is otherwise so meritorious that any other characterization 
clearly would be inappropriate. 
8.  The applicant states that he was not given a chance to prove his worth to the Army 
and his record should show how good of a soldier he was before the one incident.  His 
records shows that he received a Good Conduct Medal and had served honorably prior 
to this incident.
9.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published DOD guidance on equity, 
injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient 
evidence to grant partial relief.  The applicant’s contentions were carefully considered.  
The Board applied Department of Defense standards of liberal consideration to the 
complete evidentiary record.  The Board agreed the misconduct does not warrant an 
upgrade to an honorable discharge; however, an under honorable conditions 
characterization is appropriate based upon the recorded misconduct. 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

: X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 for the period ending 13 June 1984 showing his characterization of 
service as general, under honorable conditions.


	  
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, U.S. Code, 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.  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 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 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Action will be taken to separate a member for misconduct when it is 
clearly established that rehabilitation is impracticable or is unlikely to succeed.  A 
UOTHC discharge is normally appropriate for a Soldier discharged under this chapter; 
however, the separation authority may direct a general discharge if such is merited by 
the Soldier’s overall record.  Only a general court-martial convening authority may 
approve an honorable discharge or delegate approval authority for an honorable 
discharge under this provision of regulation.

     d.  Paragraph 14-12c provides for the separation when there is a pattern of 
misconduct involving acts of discreditable involvement with civil or military authorities 
and conduct which is prejudicial to good order and discipline. 

     e.  Paragraph 1-18 waives the rehabilitation transfer because it would not be in the 
best interest of the Army as it would not product a quality Soldier

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)	 AR20180000262

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