ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  6 August 2019

	DOCKET NUMBER:  AR20180012764


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 
(UOTHC) discharge and a personal appearance before the Board.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	self-authored letter
*	certificate of ordination
*	cosmetologist license
*	high school diploma equivalency certificate
*	internal revenue service tax exempt status
*	tytetrax/jams business license
*	DD Form 214 (Report of Separation 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 when he enlisted he had only been married for 1 year to his wife 
and they had one son.  He finished his basic training at Fort Knox, KY and was shipped 
out to Fort Sill, OK for his advanced individual training (AIT).  While at AIT, his 
grandmother passed which was a great blow to his mental state at the time.  He 
overcame her lost.  He completed his training and was able to join his young family in 
FL.  While he was on leave, he helped his recruiter to recruit five young men into the 
military, he loved being a Soldier.  While assigned to Fort Kobbe, Panama, one night he 
called his wife and she told him that she had a boyfriend.  He was devastated and panic 
sat in immediately.  He earned 10 days of leave for helping his recruiter recruit Soldiers 
into the Army.  He took leave and went home to work on his marriage.  He did not return 
to his duty assignment at the end of his leave and became absent without leave.  In 
April 1975 he was apprehended and he was eventually sent to Fort Gordon, GA.  He 
provided a detailed self-authored letter of his military service and events leading up to 
his discharge (detailed letter enclosed in packet).  

3.  The applicant provides:

	a.  Certificate of Ordination, dated 4 April 1984, he received his ordination for 
preaching.

	b.  High school diploma equivalency certificate, dated 6 May 1986, achieved the 
academic equivalency for 4 years of standard high school work.

	c.  Cosmetologist license, dated 14 March 1989.

	d.  Internal revenue service tax exempt status, dated 12 February 2008, he received 
tax exemption for his church, Laborers of the Harvest Church.

	e.  TYTETRAX/JAMS business license, dated 19 July 2011, he received a business 
license in the city of Asheville, NC.

4.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 21 June 1973.  He served with 3rd Battalion, 
5th Infantry, U.S. Army Southern Command, Panama beginning on 1 November 1973.  

	b.  The complete facts and circumstances surrounding the applicant's chapter 
proceedings (charge sheet, request for discharge, and chain of command's 
recommendations), are not available for the Board to review.  However, his service 
record contains the following:

	(1)  DA Form 188 (Extract Copy of Morning Report) and DA Form 3835 (Notice of 
Unauthorized Absence from the U.S. Army), dated 15 January 1974, shows he was 
reported absent without leave (AWOL) from 15 December 1973 to 13 January 1974 and 
dropped from the rolls 13 January 1974.

	(2)  Letter from the U.S. Army Enlisted Records Center, Fort Benjamin Harrison,
IN, dated 7 April 1975, shows he returned to military control on 22 March 1975.

	c.  On 7 May 1975, Special Orders Number 89, shows the separation authority 
approved the applicant to be separated with an UOTHC discharge.

	d.  On 14 May 1975, his DD Form 214 (Certificate of Release or Discharge from 
Active Duty) shows the applicant was discharged from active duty.  He was discharged 
under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), for conduct triable by court-martial, with an UOTHC 
discharge.  He completed 7 months and 12 days of active service and he had 462 days 
of lost time from 15 December 1973 to 21 March 1975.  His DD Form 214 also shows 
he was awarded or authorized the Marksman Marksmanship Qualification Badge with 
Rifle Bar (M-16).

5.  By regulation applicants do not have a right to a hearing before the ABCMR.  The 
Director or the ABCMR may grant a formal hearing whenever justice requires.

6.  There is no evidence the applicant has applied to the ADRB for review of his 
discharge within that board's 15-year statute of limitations. 

7.  By regulation (AR 635-200), a member who has committed an offense or offenses, 
the punishment for any of which includes a bad conduct or dishonorable discharge, may 
submit a request for discharge for the good of the service.  The issuance of a discharge 
under the provisions of chapter 10, AR 635-200, would have required the applicant to 
have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a 
trial by court-martial.  

8.  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 
determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined that it could reach a fair and equitable decision in the case without a 
personal appearance by the applicant.

Additionally, the Board concluded that based upon the short term of honorable service 
completed prior to a lengthy period of AWOL, as well as a lack of corroborating 
evidence to support the applicant’s statement, that there was insufficient evidence of an 
error or injustice which would warrant making a change to the applicant’s 
characterization of service.



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.



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 (Personnel Separations – Enlisted Personnel), in effect at 
the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d, states that an honorable discharge is a separation with honor.  
Issuance of an Honorable Discharge Certificate is predicated upon proper military 
behavior and proficient performance of duty during the member’s current enlistment or 
period of obligated service with due consideration for the member’s age, length of 
service, grade, and general aptitude.

	b.  Paragraph 1-9e, states that a general discharge is a separation from the Army 
under honorable conditions.  It is issued to a member whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The 
recipient of a general discharge is normally a member whose military record and 
performance is satisfactory.

	c.  Chapter 10 of this regulation provides that a member who has committed an 
offense or offenses, the punishment for any of which, under the Uniform Code of Military 
Justice and the Manual for Courts-Martial, includes a bad conduct or dishonorable 
discharge may submit a request for discharge for the good of the service.  An under 
other than honorable discharge certificate normally is appropriate for a member who is 
discharged for the good of the service.  However, the discharge authority may direct an 
honorable or general discharge if such are merited by the member’s overall record 
during the current enlistment.

3.  Army Regulation (AR) 15-185 (ABCMR) 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, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional 
evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not 
have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a 
formal hearing whenever justice requires

4.  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.  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.  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.

ABCMR Record of Proceedings (cont)	AR20180012764

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