ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  6 May 2019

	DOCKET NUMBER:  AR20180001270


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than 
honorable conditions (UOTHC) discharge 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 told his discharge would be changed to honorable in five 
years.  He is disabled and is in need of housing.  He was in 972nd Combat Engineer 
Battalion, Terre Haute, IN.  He was in trouble from a criminal case that he did not 
commit.  He was aware of it and did not report it so he was also charged.  He loved the 
Army and wished he could do it all over again.

3.  On 25 February 1982, at the age of 18 years, he enlisted in the U.S. Army Reserve 
(USAR) for a term of 6 years.  On 1 March 1982, he entered active duty.  He was 
released from active duty on 10 June 1982 and transferred to his unit in Terra Haute, 
IN.  He completed 5 months and 10 days of net active service this period.  His DD Form 
214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or 
authorized:
*	M-16 Rifle Sharpshooter Marksmanship Qualification Badge
*	Hand Grenade Marksman Marksmanship Qualification Badge
*	Army Service Ribbon

4.  On 17 September 1982, he received a letter of instructions for unexcused absence 
from his commanding officer.  The letter stated that the applicant accrued four 
unexcused absences within a one year period.  A receipt for certified mail is attached to 
the letter along with a return receipt signed by a Ms. D_ F_.

5.  On 18 October 1982, the applicant was convicted by the Owen Circuit Court of Owen 
County, IN of:

*	five counts of criminal mischief, Class A misdemeanors; sentenced to one year 
imprisonment for each count to run concurrently with another charge, suspended
*	one count of burglary, a Class C felony; sentenced to 5 years imprisonment, 
suspended
*	one count of theft, Class D felony; sentenced to 2 years imprisonment and a fine

6.  The applicant’s immediate commander notified the applicant that he was initiating 
separation actions against him under the provisions of Army Regulation (AR) 135-178 
(Army National Guard and Army Reserve Separation for Enlisted Personnel), Chapter 7, 
conviction by civil court.  A receipt for certified mail was attached to the notification 
addressed to the applicant’s address and the return receipt was signed by W_ E_.  The 
chain of command recommended approval of the separation with a general under 
honorable conditions discharge and an UOTHC.

7.  On 18 January 1983, the Acting Chief, Headquarters, Fifth U.S. Army Reserve 
Enlisted Division, Fort Sam Houston, TX, requested that the command again notify the 
applicant of the pending separation action and mail the notification to the Indiana 
Department of Corrections (DOC) instead of the applicant’s address.

8.  The applicant’s immediate commander mailed the notification to the Indiana DOC, 
suspending the action for 45 days to give the applicant the opportunity to exercise his 
privileges.  The return receipt shows the notification was delivered to the DOC on 
25 February 1983.  The record contains an acknowledgment; however, it is incomplete 
and unsigned.

9.  The applicant's record is void of a memorandum of separation approval.  His records 
shows, on 13 May 1983, he was discharged from the USAR.  His service was 
characterized as UOTHC.  His personnel qualification record shows he was awarded or 
authorized:

*	M-16 Rifle Sharpshooter Marksmanship Qualification Badge
*	Hand Grenade Marksman Marksmanship Qualification Badge
*	Army Service Ribbon

10.  The applicant states he was told that his discharge would automatically be 
upgraded in five years, his record shows he was convicted by civil court for various 
felonies and misdemeanors.  The U.S. Army does not have, nor has it ever had, a policy 
to automatically upgrade discharges.  Each case is decided on its own merits when an 
applicant submits an application to either the Army Discharge Review Board or the 
ABCMR requesting change in discharge.  He completed 14 months of his 72 months 
contractual obligation.

11.  AR 135-178 (Army National Guard and Army Reserve Separation for Enlisted 
Personnel), Chapter 7, paragraph 7-7, conviction by civil court, in effect at the time, 
stated separation action may be initiated against Soldiers when initially convicted by 
civil authorities, or action is taken that is tantamount to a finding of guilty to include a 
similar adjudication in juvenile proceedings; and a punitive discharge would be 
authorized for the same or a closely related offense under the Manual for Courts-Martial 
or the sentence by civil authorities includes confinement for six months or more without 
regard to suspension or probation; and specific circumstances of the offense warrant 
separation.  The issuance of a discharge under other than honorable conditions 
(UOTHC) was normally considered appropriate for discharges under Chapter 7.

12.  In reaching its determination, the Board can consider the applicant's petition and his 
service record 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 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service 
and no evidence of mitigating circumstances for the serious misconduct.  The Board 
agreed that the applicant’s discharge characterization is 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.


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 (AR) 135-178 (Army National Guard and Army Reserve Separation 
for Enlisted Personnel), in effect at the time, established policies, standards, and 
procedures governing the administrative separation of enlisted Soldiers from the Army 
National Guard of the United States (ARNGUS) and the USAR.  It implemented 
discharge proceedings for misconduct under Chapter 7.  Soldiers separated under this 
chapter will normally be furnished a characterization of service of under other than 
honorable conditions.  If warranted by the member’s overall record, a characterization 
of service under honorable conditions may be furnished.  An honorable characterization 
of service is not authorized for a Soldier who has completed entry level status unless 
the Soldier’s record is otherwise so meritorious that any other characterization would 
clearly be inappropriate.

   a.  Paragraph 7-7 prescribed the procedures required to discharge ARNGUS and 
USAR Soldiers for conviction by civil court.  It stated separation action may be initiated 
against Soldiers under the following circumstances: (1)  When initially convicted by civil 
authorities, or action is taken that is tantamount to a finding of guilty to include a similar 
adjudication in juvenile proceedings; and (2)  A punitive discharge would be authorized 
for the same or a closely related offense under the Manual for Courts-Martial or the 
sentence by civil authorities includes confinement for six months or more without regard 
to suspension or probation; and (3)  The specific circumstances of the offense warrant 
separation.  The immediate commander will consider whether to initiate separate action 
against a member when the criteria is satisfied.

	b.  An honorable characterization of is appropriate when the quality of the member’s 
service generally has met the standards of acceptable conduct and performance of duty 
for military personnel.

   c.  A general characterization is appropriate when the member’s service has been 
honest and faithful and is warranted when significant negative aspects of the member’s 
conduct or performance outweigh positive aspects of the member’s military record.
   
   d.  When a soldier is to be discharged with a discharge under other than honorable 
conditions, the convening authority will direct the immediate reduction to pay grade of 
private one (PV1)/E-1.

3.  AR 135-178 (Army National Guard and Reserve Enlisted Administrative 
Separations), currently in effect, sets policies, standards, and procedures to ensure the 
readiness and competency of the U.S. Army while providing for the orderly 
administrative separation of ARNGUS and USAR enlisted Soldiers for a variety of 
reasons.  Readiness is promoted by maintaining high standards of conduct and 
performance. 

   a.  An honorable characterization is appropriate when the quality of the Soldier'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 characterization under honorable conditions is appropriate if a Soldier's 
service has been honest and faithful, when significant negative aspects of the Soldier's 
conduct or performance of duty outweigh positive aspects of the Soldier's military 
record.  It is awarded to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

4.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade 
discharges.  Each case is decided on its own merits when an applicant submits an 
application to either the Army Discharge Review Board or the ABCMR requesting 
change in discharge.  Changes may be warranted if the ABCMR determines that the 
characterization of service or the reason for discharge or both were improper or 
inequitable.  The Defense Discharge Review Standards specifically state that no factors 
should be established that require automatic change or denial of a change in discharge.

5.  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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180001270

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