ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	I	BOARD DATE:  2 May 2019

	DOCKET NUMBER:  AR20180013639


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an honorable discharge and restoration of his rank/grade to 
sergeant (SGT)/E-5.

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), with self-authored statement dated 
4 September 2018 
*	DA Form 87 (Certificate of Training), 23 April through 17 June 1982 
*	Letter of Appreciation, dated 3 May 1984
*	Certificate of Training, 1 October through 5 October 1984
*	Letter of commendation, dated 12 October 1984
*	Letters from five doctors, dated between 13 March 1985 and 20 June 1985, in 
support of his previous request for compassionate reassignment
*	Immediate and intermediate commanders' endorsement to his request for 
discharge for the good of the service, both dated 9 December 1985
*	Separation authority approval of his request for discharge for the good of the 
service, dated 16 December 1985
*	DD Form 794A (UOTHC Discharge Certificate), dated 16 January 1986     

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:

a.	His military service records show he was a good Soldier.  He felt as if he had 
no other choice but to go absent without leave (AWOL) because his mother and 14 year 
old sister needed him at home to work and care for them. 

   b.	 He always gave 100 percent (%), did as he was told, and enjoyed his job.  He 
was promoted to acting sergeant at 24 months of service, although he was an E-4, he 
wore E-5 stripes.  At 30 months of service he was promoted to E-5, and felt he had 
found a home in the service.  He planned to stay in and retire from the Army.  
Unfortunately, he had to go home on emergency leave.  His mother had a 
hysterectomy, his father left her for another woman, and it all really messed her nerves 
up.  My sister and mother were left alone, with no family in the area.  She requested that 
he be sent home.  Once he reached home and saw how bad things were, he requested 
reassignment to the states but his request was denied.  His mother’s doctors kept 
saying he need to be with her, because she had some complications, his sister was only 
14 year old, bills needed to be paid, and they needed groceries and clothes.          

	c.  He felt like his back was against a wall and he couldn’t stand the thought of 
leaving them.  He decided to put them before himself and eventually, he was arrested 
for being AWOL.  He didn’t fuss or argue; he knew he needed to get discharged so he 
could get back home.  Eventually his mother got better and he moved on with his life.  
He has been married for 31 years and he has adopted his wife’s children and built a 
farm in 1993.  He also has been driving a school bus for 12 years.  He has been a 
traveling man since 2000 and now serves as the Secretary.   
 
3.  The applicant enlisted in the Regular Army on 14 April 1982. 

4.  The applicant’s record contains:

	a.  A letter from the Office, Chief of Legislative Liaison to the Office of his Member of 
Congress, informing his Member of Congress that his compassionate reassignment 
request was considered but denied.  The request further shows the applicant was 
granted an additional attachment until July 8 to help his mother stabilize their family 
situation.  He was to be released on that date to return to his unit in Germany.

	b.  DA Forms 4187 (Personnel Action) that show his status was changed from 
AWOL to dropped from the rolls (DFR) on 22 August 1985, and from DFR to Present for 
Duty when he was apprehended by civilian authorities in Gainesville, GA on  
23 November 1985.  

	c.  A memorandum showing the applicant did not desire a medical evaluation prior to 
his separation, dated 27 November 1985. 

	d.  A memorandum showing the applicant’s "Admission of AWOL for Administrative 
Purposes," dated 4 December 1985.  

	e.  Court-martial charges were preferred against the applicant on 4 December 1985, 
for violations of the Uniform Code of Military Justice (UCMJ).  The DD Form 458 
(Charge Sheet) shows he was charged with being AWOL from on or about 20 July 1985 
through on or about 23 November 1985.  
5.  Orders Number 229-1, issued by Headquarters, U.S. Army Personnel Control 
Facility (PCF), Fort Knox, KY on 5 December 1985, assigned the applicant to the PCF, 
Fort Knox, KY effective on 23 November 1985.  These orders indicate he was 
apprehended and returned to military control on the same day.

6.  The applicant consulted with legal counsel on 5 December 1985.

   a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of a 
bad conduct discharge, and the procedures and rights that were available to him.  

   b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-
martial.  In his request for discharge, he acknowledged his understanding that by 
requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense that also authorized the imposition of a bad conduct or dishonorable 
discharge.  He further acknowledged he understood that if his discharge request was 
approved he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.

   c.  He was further advised that there is no automatic upgrading nor review by any 
Government agency of a less than honorable discharge and that he must apply to the
Army Discharge Review Board for Correction of Military Records if he wished for a 
review of his discharge.  He realized that the act of consideration by either board does 
not imply that his discharge would be upgraded.
   
   d.  He was advised he could submit any statements he desired in his own behalf.  in 
an attached separated, he noted:
   
   	(1)  He came home on emergency leave from Europe because his mother was ill 
and his parents were getting a divorce in the middle of her illness.  He had two letters 
from his mother’s doctors regarding her condition.  
   
   	(2)  He went to Fort McPherson, GA, and spoke with a woman about his 
situation.  She told him he didn’t have enough grounds for a compassionate 
reassignment and he needed to get another letter.  When he got an additional letter, 
she again told him it wasn’t enough.  Finally, after he got another letter, she said she 
would forward his packet but it was disapproved.  He felt the lady didn’t put in enough 
effort to help him and she stated that since his mother was okay and well, he should not 
worry and should return to Germany.  The doctors said his mother had a poor physical 
and mental condition.  How could this lady, who had never talked to his mother, think 
she was fine?  
   	(3)  He felt this lady put her comments into his packet when she forwarded it to 
the Department of the Army, so he went to his Member of Congress.  The Member tried 
to help but the board already had a negative attitude towards his case and turned him 
down.  Four months after his mother left the hospital, the doctors were still seeing her 
and told her she needed to stay at home.  He went through all the channels he could 
and the only thing he had left was going AWOL.  He feels the woman at Fort 
McPherson ruined his future in the Army.  His record shows he was a good Soldier.  

7.  The applicant’s commander recommended approval of his discharge request on 
9 December 1985, in lieu of trial by court-martial, and recommended he receive a 
general discharge.  His requests include the statement "upon investigation of [the 
applicant’s] case, there were extenuating circumstances that resulted in his AWOL, 
because of his inability to resolve the problem by other means."

8.  The applicant’s Intermediate Commander also recommended approval of his request 
on 9 December 1985 and recommended he receive a general discharge.  His request 
included the statement "[the applicant] appears to be an intelligent and capable NCO. 
He attempted, through appropriate channels, to resolve his family problems.  [The 
applicant] realizes his AWOL was the wrong thing to do but he saw no other course of 
action to take."

9.  The separation authority approved the applicant's request for discharge on  
16 December 1985, under the provisions of Army Regulation 635-200, Chapter 10, in 
lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted 
grade and the issuance of a UOTHC Discharge Certificate.

10.  Orders Number 245-3, issued by Headquarters, U.S. Army Personnel Control 
Facility (PCF), Fort Knox, KY on 31 December 1985, ordered the applicant's reduction 
in rank/grade from sergeant (SGT)/E-5 to private (PVT)/E-1, effective 16 December 
1985. 

11.  The applicant was discharged on 16 January 1986, under the provisions of Army 
Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  The DD Form 214 he 
was issued shows his service was characterized as UOTHC, and further shows in:

*	Item 18 (Remarks), include the entry "EXCESS LEAVE OF 43 DAYS:  851205-
860116"
*	Item 28 (Narrative Reason for Separation), the entry "FOR THE GOOD OF THE 
SERVICE-IN LIEU OF COURT-MARTIAL"
*	Item 29 (Dates of Lost Time During this Period), "850720-851122"

12.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

13.  The applicants provides several documents from his service record that show he 
was a good Soldier.  Five letters from his mother’s doctors, dated between 14 March 
1985 and 20 June 1985, which show her medical treatment and which requested the 
applicant’s presence to support his compassion reassignment request in 1985.   
     
14.  The Board should consider the applicant's request and his service record in 
accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined that there is 
sufficient evidence to grant relief.  Regarding both the discharge upgrade and the 
restoration of rank/grade, the Board agreed that the applicant’s case warrants 
clemency.

1.  Regarding the discharge, the applicant had already completed one enlistment 
honorably and had received a good conduct medal when, during his second enlistment, 
the applicant was discharged for a solitary instance of misconduct that was pursuant to 
the applicant’s request for a hardship discharge; the Board found that the prior 
honorable service and the hardship discharge request mitigated the minor misconduct.  
Therefore, the Board found that the discharge was too harsh. 

2.  Regarding the restoration of rank/grade to SGT/E5, the applicant was reduced in 
rank/grade from SGT/E5 to PVT/E1 resulting from administration of NJP pursuant to 
one instance of misconduct.  The Board agreed that this was too harsh a punishment 
for the minor misconduct and in light of the mitigating factors relating to the illness of the 
applicant’s mother, which was corroborated by several doctors.

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 showing the following amendments:

To correct the discharge: 
*	Characterization: "Honorable"
*	Separation Authority: "Army Regulation 635-200, paragraph 5-3"
*	Separation Code: "JFF"
*	Reentry (RE) Code: "1"
*	Narrative Reason for Separation: "Secretarial Authority"

To correct the Rank/Grade at the time of separation: 
*	Grade, Rate or Rank: “SGT”
*	Pay Grade: “E5”


	  
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):  N/A

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 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Paragraph 3-7a states 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.  Paragraph 3-7b states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to Soldiers whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10, in effect at the time, provided that a member who committed an 
offense or offenses under the UCMJ, for which the authorized punishment included a 
punitive discharge, could submit a request for discharge for the good of the service at 
any time after court-martial charges were preferred.  Commanders would ensure that an 
individual was not coerced into submitting a request for discharge for the good of the 
service.  Consulting counsel would advise the member concerning the elements of the 
offense or offenses, the type of discharge normally given under the provisions of this 
chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of 
the characterization of such a discharge.  An under other than honorable conditions 
discharge was normally considered appropriate.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards (DRBs) and Service Boards for Correction of 
Military/Naval Records (BCM/NRs) on 25 July 2018, 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.

	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)	AR20180013639

6

1