ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  15 August 2019

	DOCKET NUMBER:  AR20180014449


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions (UOTHC) discharge to a general under honorable conditions 
discharge.

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) in lieu of DD Form 149 (Application for Correction of Military 
Record)
*	Self-Authored Statement
*	DD Form 214 (Certificate of Release or Discharge From Active Duty) for period 
ending 22 May 1987

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 was honorably discharged from the U.S. Army in 2002.  He 
negotiated the 1987 discharge which is listed as an under other than honorable 
conditions and was granted for the following reasons:

   a.  Starting with basic training and continuing throughout his tenure, he was 
subjected to racial profiling based on his American Indian Heritage.  He endured this 
daily from his immediate supervisor, who called him out with ongoing racial slurs.  This 
led to a meeting with the commander (colonel) and the applicant’s decision to 
discharge.
   
   b.  His pregnant fiancé was about to give birth to their child and she asked him to 
return home because she had no one else to help her.  The applicant chose to help her 
and asked the U.S. Army for an early release to return home as quickly as possible.  He 
was granted an early release from his tour of duty at that time.

3.  On 26 October 1983, at the age of 21 years old, the applicant enlisted in the Regular 
Army.

4.  On 17 June 1986, the applicant went absent without leave (AWOL) and on 17 July 
1986, he was dropped from the rolls.  On 9 October 1986, he was returned to military 
control.

5.  On 22 May 1987, the applicant was discharged.  His service was characterized as a 
UOTHC under the provisions of Army Regulation (AR) 635-200 (Personnel Separations 
– Enlisted Personnel), Chapter 10, for the good of the service – in lieu of court-martial.  
He completed 3 years, 1 month, and 28 days of net active service this period, with 7 
months and 20 days of Foreign Service.  His DD Form 214 shows:

*	He was awarded or authorized:

*	Army Service Ribbon
*	Army Achievement Medal
*	M-16 Rifle Sharpshooter Marksmanship Qualification Badge

*	Dates of Time Lost During This Period:  851127-860101 and 860617-861007

6.   The complete facts and circumstance surrounding the applicant's discharge under 
AR 635-200, Chapter 10, are not available.  

7.  On 15 March 2001, the applicant enlisted in the Washington Army National Guard for 
a term of 2 years and 10 weeks.  On 14 March 2002, he was honorably discharged from 
the Army National Guard and transferred to the U.S. Army Reserve Group to complete 
his 1 year, 2 months, and 15 days service obligation.

8.  The applicant states, in part, starting with basic training and continuing throughout 
his tenure, he was subjected to racial profiling based on his American Indian Heritage.  
His record shows he enlisted at the age of 21 years old, he had 149 days lost, which 
evidence shows 113 days were due to being AWOL.

9. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by 
court martial.  A member may be awarded an honorable or general discharge, if during 
the current enlistment period of obligated service he has been awarded a personal 
decoration or if warranted by the particular circumstances of a specific case.

10.  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.  

11.  In reaching its determination, the Board can consider the applicant’s petition and 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

BOARD DISCUSSION:

1.  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 regarding racial 
profiling and his personal situation, his overall service record, the frequency and nature 
of his misconduct, the absence of a separation packet, the authority for his separation 
and whether to apply clemency.  The Board found insufficient in-service mitigation for 
his misconduct and found no evidence to support his clam of racial profiling; the 
applicant provided no evidence of post-service achievements or 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.  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 (AR) 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 Army Board for Correction of Military Records (ABCMR).  
In pertinent part, it states that 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.  AR (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, 
set forth the basic authority for the administrative separation of enlisted personnel, it 
states:

   a.  A Chapter 10 (Discharge for the Good of the Service) is applicable to members 
who had committed an offense or offenses for which the authorized punishment 
included a bad conduct or dishonorable discharge could submit a request for discharge 
for the good of the service.  The request could be submitted at any time after the 
charges had been preferred.  Although an honorable or general discharge was 
authorized, an under other than honorable conditions discharge was normally 
considered appropriate.  

   b.  An honorable discharge was 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 generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.
   
   c.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.
   
   d.  When a member is to be issued a discharge under other than honorable 
conditions, the convening authority will direct his immediate reduction to the lowest 
enlisted grade.
   
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.  

   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, 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.  
    
   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.


ABCMR Record of Proceedings (cont)	 AR20180014449

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