ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  20 August 2019

	DOCKET NUMBER:  AR20180013947


APPLICANT REQUESTS:  his under other than honorable conditions (UOTHC) 
discharge he upgraded to a general, under honorable discharge (GD) and a personal 
appearance before the Board.


APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States
*	DD Form 214 (Certificate of Release or Discharge 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 he needs his discharge upgraded for benefits.  He was dealing 
with a lot of problems and was unable to put his whole self into being in the service.  His 
stepfather committed suicide which put him in the wrong frame of mind.  He would like 
to see a traveling judge in Washington State.

3.  On 21 December 1981, the applicant was informed his check cashing privileges 
were suspended for one year.  The letter indicated it was his second offense within a 
year.

4.  The applicant accepted non-judicial punishment on the following occasions:

*	12 April 1982, for assault, dereliction of duty, failing to obey a lawful order, and 
possession of marihuana
*	19 May 1982, for assault 

 5.  On an unspecified date, the applicant’s commander notified him that he was 
initiating action to separate him under the provisions of Army Regulation 635-200 
(Personnel Separations - Enlisted Personnel), paragraph 14-33, for misconduct.  The 
commander stated the reason for the proposed action was the applicant had shown a 
complete lack of ability and willingness to perform assigned duties and tasks.  The 
applicant repeatedly failed to perform to acceptable standards.  The applicant failed to 
follow instructions, been disrespectful, and abused alcohol and marijuana.  The 
applicant resisted all efforts at rehabilitation.  The applicant was informed of his rights 
and acknowledged notification of receipt.  
 6.  On 16 August 1982, after being advised by consulting counsel of the basis for the 
contemplated action to separate him for misconduct.  The applicant requested 
consideration of his case by a board of officers and a personal appearance before a 
board of officers.  He indicated he submitted a statement in his own behalf; however, his 
statement is not available for review.  
7.  On 29 November 1982, a board of officers found the applicant undesirable for further 
retention in the military service because of pattern of misconduct.  Rehabilitation was 
not deemed possible.  The board recommended the applicant be discharged with 
issuance of an honorable discharge certificate.
8.  On 22 December 1982, the approval authority approved the applicant’s discharge 
under the provisions of Army Regulation 635-200, chapter 14, due to misconduct.  He 
directed the issuance of a UOTHC discharge.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he 
was discharged accordingly due to misconduct – pattern of misconduct.  He completed 
1 year, 11 months, and 8 days of net active service.  His service was characterized as 
UOTHC.  He was awarded or authorized the following:

*	Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
*	Expert Marksmanship Qualification Badge with Grenade Bar 
*	Army Service Ribbon
*	Overseas Service Ribbon  

10.  On 27 June 2019, the ABCMR obtained an advisory opinion from a Clinical 
Psychologist with Army Review Boards Agency (ARBA), who states, in part, the 
applicant met medical retention standards.  There is no indication that there was a 
psychiatric problem that would have caused the applicant’s disciplinary problems.  A 
review of the available documentation found insufficient evidence of a medical disability 
or condition that would support a change to the character(s), reason(s), rated 
condition(s), disability determination(s), disability rating(s), and/or combat relatedness 
for the discharge in this case.  A copy of the complete medical advisory was provided to 
the Board for their review and consideration.
11.  On 12 July 2019, the applicant was provided a copy of the opinion and given the 
opportunity for comment or rebuttal.  He did not respond.
     
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  Chapter 14 establishes policy and prescribes procedures for separating 
members for misconduct.  Specific categories include minor disciplinary infractions (a 
pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern 
of misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities.  Action will be taken to separate a member for misconduct 
when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A 
discharge under other than honorable conditions is normally appropriate for a Soldier 
discharged under this chapter. 
13.  Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or 
Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth 
policies, responsibilities, and procedures that apply in determining whether a Soldier is 
unfit because of physical disability to reasonably perform the duties of his office, grade, 
rank, or rating.  

14.  In reaching its determination, the Board can consider the applicant's petition, his 
statements, and available service record, in light of the published Department of 
Defense guidance on equity, injustice, or clemency.


BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records, a medical advisory opinion 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 considered the review 
and agreed with conclusion of the medical advising official that found no mitigating 
condition for the applicant’s misconduct.  The Board found insufficient evidence of in-
service mitigating factors and the applicant provided no evidence of post-service 
achievements of letters of reference in support of 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.

2.  The applicant's request for a personal appearance hearing was carefully considered. 
In this case, the evidence of record was sufficient to render a fair and equitable 
decision. As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.


3.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.
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 635-200 sets forth the basic authority for the separation of enlisted 
personnel.

     a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities.  Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is 
unlikely to succeed.  An under other than honorable conditions discharge is normally 
considered appropriate.

     b.  Paragraph 3-7a states that an honorable discharge is given when the quality of 
the Soldier’s service has generally met standards of acceptable conduct and duty 
performance.

     c.  Paragraph 3-7b states 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

3.  On 3 September 2014 the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged UOTHC and who have been diagnosed 
with PTSD by a competent mental health professional representing a civilian healthcare 
provider in order to determine if it would be appropriate to upgrade the characterization 
of the applicant's service.

4.  On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole or in part to:  mental health conditions, including PTSD; 
traumatic brain injury (TBI); sexual assault; or sexual harassment.  Boards are to give 
liberal consideration to Veterans petitioning for discharge relief when the application for 
relief is based in whole or in part on those conditions or experiences.  The guidance 
further describes evidence sources and criteria and requires Boards to consider the 
conditions or experiences presented in evidence as potential mitigation for misconduct 
that led to the discharge. 

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and 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 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.


ABCMR Record of Proceedings (cont)	 AR20180013947
	
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