ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  30 August 2019

	DOCKET NUMBER:  AR20180015691


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 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552)
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 28 July 1972
*	an extract of a Report of Medical History

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 his appointed counsel did not explain the difference in accepting 
an Article 15 and the decision he made.  At age 15, he started taking anti-depressants 
and should never have been inducted.  He still takes these medications and has been 
granted Social Security disability because of his mental condition. 

3.  The applicant was inducted into the Army of the United States on 17 September 
1969.

4.  The applicant's record is void of documentation related to his discharge processing.  
However, his DD Form 214 shows he was discharged on 28 July 1972, under the 
provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 
Chapter 10, for the good of the service, and his service characterization was UOTHC.  
His DD Form 214 further shows he was discharged in the rank/grade of private/E-1 and 
he accrued 762 days of lost time due to being absent without leave (AWOL).

5.  The issuance of a discharge under the provisions of Army Regulation 635-200, 
Chapter 10, required the applicant to have requested from the Army – voluntarily, 
willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all 
requirements of law and regulation were met and the rights of the applicant were fully 
protected throughout the separation process.  The applicant has provided no 
information that would indicate the contrary.  Further, it is presumed that the applicant’s 
discharge accurately reflects his overall record of service.

6.  In the development of this case, an advisory opinion was obtained from the Army 
Review Boards Agency Medical Advisor.  This medical official opined:

   a.  A review of the hardcopy medical record indicates the applicant received an 
entrance physical on 14 Jul 1969 and was found fit for military service.  Records 
indicated he was evaluated on 17 November 1969 in order to respond to a 
Congressional Inquiry (CI) requesting an examination to determine his physical 
condition and fitness for retention.  The Cl requested specific attention be given to a 
purported history of asthma.  The applicant was admitted to the hospital for two days to 
complete a full medical evaluation.  The Provider indicated his asthma symptoms were 
successfully treated with bronchodilators and found him fit for duty.  At the time of 
evaluation, the applicant has successfully completed 7/8 weeks of basic training.  On 
20 June 1972, a separation physical was completed.  The applicant endorsed the 
following medical history: frequent headaches, severe tooth or gum trouble, asthma, 
and a cyst.  The provider indicated he met retention standards.

   b.  In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance 
Memorandum, the applicant's military medical records DO NOT support the existence of 
behavioral health condition at the time of discharge; (b) The applicant's medical records 
indicate that the applicant DID meet medical retention standards IAW AR 40-501 . (c) 
There was no behavioral health condition to consider with respect to mitigation of the 
misconduct that resulted in the applicant's discharge from the military.

7.  A copy of the advisory opinion was forwarded to the applicant with no response.

8.  The Board should consider the applicant's statement 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, a medical advisory opinion and published DoD guidance for 
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 conclusions of 
the medical advising official stating there was no evidence of mitigating factors or 
conditions for his misconduct.  The Board concurs with the advising official and found 
that 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 
the 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 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.  It provides:

   a.  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.  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.  Chapter 10 provides 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 UOTHC 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.

ABCMR Record of Proceedings (cont)	 AR20180015691
	
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