ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  26 April 2019

	DOCKET NUMBER:  AR20180015523


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an honorable 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)

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 scored 99 percent (%) on his skills qualification test (SQT), 
made the man on guard duty 21 straight times, received awards for physical fitness 
testing, and received high scores during gunnery qualification.

3.  The applicant enlisted in the Regular Army on 6 September 1979.

4.  The applicant received nonjudicial punishment (NJP), under the provisions of Article 
15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the 
indicated offenses:

*	on 8 March 1980, for failure to go to his place of duty
*	on 18 March 1981, for without authority leaving his place of duty
*	on 23 July 1981, for without authority leaving his place of duty and disobeying a 
lawful order by having intoxicating beverages in the field area

5.  A summary court-martial found the applicant guilty, on 22 October 1981, of missing 
troop movement on or about 13 October 1981, and of failure to go to his appointed 
place of duty on or about 17 October and 19 October 1981.

6.  The applicant's unit commander notified the applicant on 4 November 1981 that he 
was initiating separation actions against him under the provisions of Army Regulation 
635?200 (Personnel Separations – Enlisted Personnel), paragraph 14-33, by reason of 
misconduct ? an established pattern of shirking.

7.  The applicant consulted with legal counsel on 16 November 1981.  

   a.  He was advised of the contemplated discharge action and the procedures and 
rights that were available to him.  
   
	b.  Subsequent to receiving legal counsel, he waived his rights to a review by a 
board of officers, to a personal appearance, and to submit a statement on his own 
behalf.

   c.  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.  

8.  The applicant's commander formally recommended his separation from service on 
16 November 1981, under the provisions of Army Regulation 635-200,  
paragraph 14-33.  The appropriate authority approved the applicant's discharge on 
4 December 1981, under the provisions of Army Regulation 635-200, paragraph 14?33, 
and directed that he receive a UOTHC Discharge Certificate.

9.  The applicant was discharged on 28 December 1981.  The DD Form 214 he was 
issued shows he was discharged under the provisions of Army Regulation 635-200, 
Chapter 14, by reason of misconduct – established pattern of shirking.  His  
DD Form 214 further shows his service was characterized as UOTHC and:

*	he was discharged in the rank/grade of private/E-1
*	2 years, 3 months, and 1 day of creditable service 
*	no award of any personal awards or decorations 

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is sufficient 
evidence to grant partial relief.  The applicant’s contentions were carefully considered.  
The Board applied Department of Defense standards of liberal consideration to the 
complete evidentiary record.  The Board agreed the characterization for the misconduct 
was severe; however, the misconduct does not warrant an upgrade to an honorable 
discharge.  The Board agreed to grant clemency in the form of an under honorable 
conditions characterization.
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by reissuing 
him a DD Form 214 showing the characterization of service as under honorable 
conditions.  

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrading his the characterization of service to 
honorable.


	  
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 regulation provides 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.  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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

   c.  Paragraph 14-33, as then in effect, provided that a Soldier could be discharged 
for a pattern of conduct consisting of one of the following: discreditable incidents 
involving civil or military authorities; sexual perversion, drug offenses, an pattern of 
showing dishonorable failure to pay just debts, failure to contribute adequate support to 
dependents, homosexual acts, or an established pattern of shirking. A UOTHC 
discharge is normally appropriate for a Soldier discharged under this chapter.  
   
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)	 AR20180015523
	
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