ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 June 2019

	DOCKET NUMBER:  AR20180014935


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions (UOTHC) discharge to a general under honorable conditions 
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)
*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States) 

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 submitted a DD Form 149 and a DD Form 293.  He states he was 
jumped [attacked] and beat up and no one did anything.  It has been 37 years since his 
discharge and he feels that he was discharged unfairly.

3.  On 10 December 1979, at the age of 18 years old, the applicant enlisted in the 
Regular Army for a term of 4 years.

4.  The record shows he accepted nonjudicial punishment (NJP) on:

*	21 January 1980 for disobeying a lawful order from his superior 
noncommissioned officer (NCO) by failing to stay away from the "Dog House"
*	8 August 1980 for failing to go at the time prescribed to his appointed place of 
duty on three occasions, which he appealed and the appeal was denied
*	31 October 1980 for assaulting a NCO by striking at him with a knife
*	24 May 1981 for being disrespectful towards his NCO by saying to him "You ain’t 
s_" (expletive)

5.  The applicant’s record contains 13 witness statements ranging from 8 July 1980 to 
14 November 1980 and 14 counseling statements ranging from 10 July 1980 to 14 May 
1981, regarding his misconduct and or deficiencies.

6.  A statement of medical examination and duty status, dated 21 December 1980, 
revealed:

      a.  The applicant was injured and treated in an Army community hospital for 
superficial lacerations to the left wrist and left face.  The report indicated that the injury 
incurred when he was assaulted at Fort Hood, TX.  He was assaulted by three unknown 
males while he was enroute back to his billets in the early morning of 21 December 
1980.  
      
      b.  He was approached by one individual who asked the applicant if he want to 
purchase some marijuana.  The applicant responded negatively, but the individual was 
persistent.  The applicant and the individual started fighting and the other two males 
held the applicant.  The third male pulled a knife and struck the applicant in the left 
Templar region and the left arm and then the three males fled the area.

7.  On 16 January 1981, the applicant was barred from reenlistment for receiving two 
NJPs, receiving several performance counseling statements from his leadership, 
instigating several fights and arguments within his section, demonstrating a lack of 
promotion or retention potential, and the commander determined that he should be 
considered for elimination from the service.

8.  On the same date, the applicant was convicted by summary court-martial for one 
specification of wrongfully possessing an indeterminate amount of marijuana.  He was 
sentenced to forfeiture of pay for one month.  On the same date, the convening 
authority approved the sentence and ordered it executed.  On 20 January 1981, the 
Office of the Staff Judge Advocate (OSJA) reviewed the findings and the sentence and 
found them to be correct in law and fact.

9.  On 18 March 1981, he was convicted by summary court-martial for failing to go at 
the time prescribed to his appointed place of duty.  He was sentenced to confinement at 
hard labor for 15 days and forfeiture of pay for one month.  On the same date, the 
convening authority approved the sentence and order it executed.  On 28 March 1981, 
the OSJA reviewed the findings and the sentence and found them to be correct in law 
and fact.

10.  On 15 April 1981, the applicant’s immediate commander notified the applicant that 
he was initiating separation actions against him under the provisions of Army Regulation 
(AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 33, 
frequent incidents of a discreditable nature with civil or military authorities and an 
established pattern of shirking.

11.  On 15 April 1981, the applicant acknowledged he had been notified of the pending 
separation action against him and he had been advised by counsel of the basis for the 
contemplated action, understood his rights, waived personal appearance before a 
board, and elected not to submit a statement in his own behalf.  On 1 June 1981, the 
applicant went absent without leave (AWOL) and returned to duty on 8 June 1981.  

12.  The chain of command recommended approval of the recommendation for 
separation and the appropriate commander approved the discharge, directing the 
applicant be discharged with an under other than honorable conditions discharge and 
that e be reduced to grade of E-1.

13.  On 30 July 1981, the applicant was discharged accordingly.  His service was 
characterized as UOTHC.  He completed 1 year and 7 months of net active service this 
period.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), 
shows:

*	He was awarded or authorized the Rifle Marksman Marksmanship Qualification 
Badge
*	Dates of Time Lost During This Period:  810315-810331; 810601-810607

14.  The applicant states he was jumped and beat up and no one did anything.  It has 
been 37 years since his discharge and he feels that he was discharged unfairly.  His 
record shows he enlisted at the age of 18 years old, he accepted 4 NJPs, his record 
contains 14 counseling statements and 13 witness statements regarding his 
performance and conduct, he was convicted by summary court-martial on two 
occasions, and he had 22 lost days due to AWOL and confinement.  The applicant 
served 19 months of his 48 months contractual obligation.

15.  AR 635-200 (Personnel Separations-Enlisted Personnel), Chapter 14, paragraph 
14-33b(1), was a separation for frequent incidents of discreditable nature with civil or 
military authorities.  The issuance of a discharge under other than honorable conditions 
(UOTHC) was normally considered appropriate for discharges under Chapter 14.  In a 
case in which an UOTHC is authorized by regulation, 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.

16.  In regards to the applicant's request for a personal appearance, AR 15-185, states 
an applicant is not entitled to a hearing before the Board; however, the request for a 
hearing may be authorized by a panel of the Board or by the Director of ABCMR.

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

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, his record of 
service, the frequency and nature of his misconduct, a bar to reenlistment, a record of 
an assault, the reason for his separation and whether to apply clemency.  The Board 
found insufficient evidence of in-service mitigating factors for his misconduct and 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.  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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set forth the basic authority for the administrative separation of 
enlisted personnel.  

   a.  Chapter 14 provides for separation for various types of misconduct.  Paragraph 
14-33b(1) provided for the separation of a Soldier due to frequent incidents of 
discreditable nature with civil or military authorities.  The issuance of a discharge under 
other than honorable conditions (UOTHC) was normally considered appropriate for 
separations under the provisions of chapter 14.  In a case in which an UOTHC is 
authorized by regulation, 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. 

   a.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate 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.  A general discharge is a separation from the Army under honorable conditions.  
When authorized, it is issued to a member whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.
   
   c.  Upon determination that a member is to be separated with a discharge certificate 
under other than honorable conditions the separation authority will direct reduction to 
the lowest enlisted grade by the reduction authority.

3.  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 regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  

   a.  Paragraph 2-9 contains guidance on the burden of proof.  It states the ABCMR 
begins its consideration of each case with the presumption of administrative regularity, 
which is that what the Army did was correct.  
   
   b.  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.  
   
   c.  The ABCMR has the discretion to hold a hearing; applicants do not have a right to 
appear personally before the Board.  The Director or the ABCMR may grant formal 
hearings whenever justice requires.

ABCMR Record of Proceedings (cont)	 AR20180014935

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