ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  9 May 2019

	DOCKET NUMBER:  AR20180014952


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
an honorable discharge.  He further requests a personal hearing before the Board.

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)

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 he would like his discharge upgraded so he may be free from 
prejudice on earth.

3.  The applicant enlisted in the Regular Army on 1 October 1982.

4.  Court-martial charges were preferred against the applicant on 14 June 1983 for 
violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge 
Sheet) shows he was charged with being absent without leave (AWOL) from on or 
about 7 April 1983 through on or about 8 June 1983.

5.  The applicant consulted with legal counsel on 17 June 1983.

	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 
an UOTHC 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 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 had not been subjected to any coercion and 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 elected not to submit any statements in his own behalf.

6.  The separation authority approved the applicant's request for discharge on 27 July 
1983, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the 
service, and directed the issuance of an UOTHC discharge.

7.  The applicant was discharged on 15 August 1983.  The DD Form 214 (Certificate of 
Release or Discharge from Active Duty) he was issued confirms he was discharged 
under the provisions of Army Regulation 635-200, Chapter 10, for the good of the 
service – in lieu of court-martial, and his service was characterized as UOTHC.

8.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

1.  After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service 
and insufficient evidence of mitigating circumstances for the misconduct. The Board 
found limited evidence of remorse or post-service honorable conduct that might have 
mitigated the discharge characterization. The Board agreed that the applicant’s 
discharge characterization is appropriate.

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.


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 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 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 may, in its discretion, hold a hearing or request additional evidence or 
opinions.  Additionally, it provides 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.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  

	a.  Paragraph 3-7a provides that 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 provides 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.  

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has 
committed an offense or offenses for which the authorized punishment includes a 
punitive discharge may, submit a request for discharge for the good of the service in lieu 
of trial by court-martial.  The request may be submitted at any time after charges have 
been preferred and must include the individual's admission of guilt.  Although an 
honorable or general discharge is authorized, a discharge under other than honorable 
conditions is normally considered appropriate.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and Boards for Correction of Military/Naval Records 
on 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemency 
generally refers to relief specifically granted from a criminal sentence.  Boards for 
Correction of Military/Naval Records 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)	 AR20180014952

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