IN THE CASE OF:  

		BOARD DATE:  20 April 2020

		DOCKET NUMBER:  AR20180008356


APPLICANT REQUESTS:  an upgrade of his discharge under other than honorable 
conditions (UOTHC) to 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 214 (Armed Forces of the United States Report of Transfer or 
Discharge)
*	National Archives and Records Administration Form 13038 (Certification of 
Military Service)

REFERENCES:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of 
military records must be filed within 3 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 3-year statute 
of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army acting through the ABCMR.  The ABCMR begins its consideration of each case 
with the presumption of administrative regularity.  The applicant has the burden of 
proving an error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-208 (Personnel Separations – Discharge Undesirable Habits 
and Traits of Character), in effect at the time, provided procedures and guidance in the 
elimination from the service of enlisted personnel having undesirable habits and traits of 
character.  When discharged because of undesirable habits or traits of character, an 
Undesirable Discharge Certificate would be furnished.

4.  Army Regulation 635-5 (Administrative Separation Procedures and Forms), in effect 
at the time, established uniform administrative procedures and separation forms to be 
used in connection with the relief from active duty.  Appendix I (Separation Program 
Number (SPN) and Authority Governing Separation) lists specific authorities governing 
the separation of officers and enlisted personnel, to include the SPN and reason 
appropriate for each type of separation.  SPN 387 represents habits or traits of 
character manifested by misconduct and identifies the authority as Army Regulation  
635-208.

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 (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 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.  This guidance does not 
mandate relief, but rather provides standards and principles to guide BCM/NRs in 
application of their equitable relief authority.  In determining whether to grant relief on 
the basis of 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, 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.

FACTS:

1.  The applicant did not file within the 3-year time frame as provided in Title 10, 
U.S. Code, section 1552(b); however, the 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 made the mistake of being drunk on duty while he was in the 
Army.  During that time his command court martialed him.  He understood what he did 
was wrong, but he wished his command had stood by him and offered him treatment 
rather than discharging him UOTHC.

3.  The applicant's complete military records are not available for review.  A fire 
destroyed approximately 18 million service members' records at the National Personnel 
Records Center in 1973.  The applicant's records were partially destroyed in that fire.  
However, there were sufficient documents remaining in a reconstructed record to 
conduct a fair and impartial review of this case.

4.  His DD Form 4 (Enlistment Document) shows he enlisted in the Regular Army on 
26 July 1955.

5.  His DA Form 24 (Personnel Qualification Record) shows:

	a.  He was absent without leave for 25 days from 2 April 1956 through 26 April 1956.

	b.  He was held in confinement for 11 days from 27 April 1956 through 7 May 1956.

	c.  He was reduced in rank/grade from private/E-2 to private/E-1 effective 21 May 
1956 by authority of 532d Field Artillery Observation Battalion Special Court Martial 
Order Number 30, dated 21 May 1956.

	d.  He was again reduced in rank/grade from private/E-2 to private/E-1 effective 
21 June 1957 by authority of Headquarters, 288th Armored Field Artillery Battalion, 
Special Court Martial Order Number 66, dated 21 June 1957.

	e.  He was again reduced in rank/grade from private/E-2 to private/E-1 effective 
8 September 1957 by authority of Headquarters, 288th Armored Field Artillery Battalion, 
Special Court Martial Order Number 47, dated 8 September 1957.

   f.  He was held in confinement for 13 days from 10 September 1957 through 
23 September 1957.

6.  The facts and circumstances surrounding his separation action are not available for 
review.

7.  His records contain a partially legible memorandum to the Commanding Officer, 
288th Armored Field Artillery Battalion, subject:  Elimination of Enlisted Personnel, 
stating the report of board proceedings in the applicant's case was approved and 
directing his transfer from Bremerhaven, Germany, to Fort Dix, NJ, for separation with 
issuance of an Undesirable Discharge Certificate.

8.  He was discharged on 9 October 1957.  His DD Form 214 shows the reason and 
authority for separation as Army Regulation 635-208, SPN 387.  His service was 
characterized as UOTHC.

9.  On 23 March 2018, he was issued a Certification of Military Service showing he was 
a member of the Regular Army from 26 July 1955 to 9 October 1957.  His service was 
terminated by discharge UOTHC.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted.  The Board carefully considered the applicant’s 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

:XX	: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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20180008356


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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