IN THE CASE OF:  

BOARD DATE:  6 April 2020

DOCKET NUMBER:  AR20180007678


APPLICANT REQUESTS:  Through his Member of Congress, in effect, that 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 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 20 February 2018
*	Release of Information and Consent Form, dated 20 February 2018
*	self-authored statement 
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 15 December 1988

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 he is seeking help in upgrading his UOTHC discharge to a 
general discharge in the hopes of getting much needed medical and dental benefits 
from the Department of Veterans Affairs (VA).  

3.  In an additional self-authored statement, the applicant states he is honored to be 
considered by such an esteemed panel.  He learned valuable life skills as an armor 
crewman in the Army.  It was a great experience.  After 30 years of struggling, he has 
finally gotten the courage to request an upgrade.  He has had a tough time finding a 
good job.  Once employers see you have a questionable military history, they shy away 
from you without asking the circumstances.  He came from a broken home, which 
caused irreparable damage to an adolescent.  Consideration of his request would go a 
long way toward giving him hope for the future.     

4.  The applicant enlisted in the Regular Army on 8 March 1988.  

5.  The applicant’s service record contains multiple DA Forms 4856 (General 
Counseling Form) that show he was counseled on the following dates for the following 
infractions:

*	on 19 September 1988, for being late for formation and for absenting himself 
from duty without being properly released, on or about 19 September 1988
*	on 6 October 1988, for neglect of duty, on or about 4 and 5 October 1988
*	on 6 October 1988, for failing to comply with an order, on or about 6 October 
1988

6.  The applicant accepted non-judicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on three occasions:

*	on 12 August 1988, for absenting himself from his unit, without authority, from on 
or about 10 July 1988 through on or about 3 August 1988
*	on 19 October 1988, for wrongfully using cocaine, on or between the dates of     
6 August 1988 and 6 September 1988
*	on 7 November 1988, for absenting himself from his unit, without authority, from 
on or about 24 October 1988 through on or about 4 November 1988

7.  The applicant's immediate commander notified the applicant on 7 November 1988 of 
his intent to initiate separation action against the applicant under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, 
for patterns of misconduct.  The commander stated the applicant's conduct was 
prejudicial to good order and discipline.  The applicant acknowledged receipt of the 
proposed separation action.

8.  The applicant met with legal counsel on 8 November 1988 and was advised of the 
basis for the contemplated actions to separate him under the provisions of Army 
Regulation 635-200, Chapter 14, and its effect; of the rights available to him; and of the 
effect of any action taken by him to waive his rights.  He acknowledged he may 
encounter substantial prejudice in civilian life if he received a general discharge.  He 
elected not to submit a statement in his own behalf and waived consideration of his 
case by an administrative separation board.   

9. The applicant's immediate commander formally recommended the applicant's 
separation, under the provisions of Army Regulation 635-200, Chapter 14, by reason of 
misconduct.

10.  Consistent with the chain of command’s recommendation, the separation authority 
approved the applicant's discharge on 12 December 1988, under the provisions of Army 
Regulation 635-200, paragraph 14-12c, and directed that his service be characterized 
as UOTHC. 

11.  The applicant was discharged on 15 December 1988.  The DD Form 214 he was 
issued confirms he was discharged under the provisions of Army Regulation 635-200, 
paragraph 14-12c, by reason of "Misconduct (Drug Abuse)," and his service was 
characterized as UOTHC.  

12.  The Board should consider the applicant's overall service record and provided 
statement in accordance with the published equity, injustice, or clemency determination 
guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted.  The Board carefully considered the applicants 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 of service, the frequency and nature of his misconduct, the reason for his 
separation and whether to apply clemency.  The Board found insufficient evidence of in-
service mitigating factors for the misconduct and the applicant provided no evidence of 
post-service achievements or letters of support to weigh 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.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: XXX	:XXX	:XXX	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 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, in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.

	a.  Paragraph 3-7a stated an honorable character of service represented a 
separation with honor and entitled the recipient to benefits provided by law.  The 
honorable characterization was appropriate when the quality of the member's service 
had generally met the standards of acceptable conduct and performance of duty for 
Army personnel or was otherwise so meritorious that any other characterization would 
be clearly inappropriate.

	b.  Paragraph 3-7b provided that 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 (Separation for Misconduct) established policy and prescribes 
procedures for separating members due to misconduct.  Soldiers were separated for 
misconduct when it was clearly established that rehabilitation was impracticable or is 
unlikely to succeed.  Paragraph 14-12c (Commission of a Serious Offense) applied to 
Soldiers who committed acts of serious misconduct, and for which a punitive discharge 
was authorized under the UCMJ.  

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)	 AR20180007678
3

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

1
ABCMR Record of Proceedings (cont)	 AR20180007678


5
ABCMR Record of Proceedings (cont)	AR20180007678


4