ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  16 April 2019

	DOCKET NUMBER:  AR20180015761


APPLICANT REQUESTS:  in effect, an upgrade of his under other than honorable 
(UOTHC) 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)

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 needs to have his discharge upgraded because he needs 
help.  He joined the Army during the Vietnam era while still in high school, so he could 
receive the Vietnam era benefits.  He was placed in the Reserve Component until he 
graduated from high school and immediately entered active duty.  He was stationed at 
Fort Leonard Wood, MO, the Republic of Korea, Fort Hood, TX, and again in Korea.

3.  The applicant enlisted in the Regular Army on 15 June 1977.  He reenlisted on 
18 December 1979, 18 November 1982, and again on 23 October 1989.

4.  A memorandum from the Commander, U.S. Military Community Activity Bamberg, 
Federal Republic of Germany, dated 4 April 1991, subject:  Notification of Intended 
Administrative Action, shows the applicant was listed as the subject of military reports 
on 13 March and 19 March 1991, for assault consummated with a battery and indecent 
assault, respectively.

5.  The applicant’s record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing.  However, his DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he was discharged on 
3 August 1992, under the provisions of Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of 
court-martial.  He was credited with 15 years, 1 month, and 19 days of net active 
service, and his service was characterized as UOTHC.

6.  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 evidence 
that would indicate the contrary.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade 
of his discharge.  The ADRB determined he was properly and equitably discharged and 
denied his request on 18 January 2001.

8.  The Board should consider the applicant's 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 
insufficient evidence to grant relief.  The applicant’s contentions were carefully 
considered.  The Board applied Department of Defense standards of liberal 
consideration to the complete evidentiary record and did not find any evidence of error, 
injustice, or inequity.  He did not provide character witness statements or evidence of 
post-service achievements for the Board to consider.  Based upon the record, the Board 
agreed that the applicant's discharge characterization was warranted as a result of the 
misconduct.

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):

A review of the applicant's record shows his DD Form 214, for the period ending 
3 August 1992, is missing important entries that affect his eligibility for post-service 
benefits.  As a result, amend the DD Form 214 by adding the following entries to item 
18 (Remarks):

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 770615 UNTIL 891022

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 635-5 (Personnel Separations – Separation Documents) prescribes 
the separation documents prepared for Soldiers upon retirement, discharge, or release 
from active military service or control of the Army.  It establishes the standardized policy 
for preparing and distributing the DD Form 214.  It states the DD Form 214 provides a 
brief, clear-cut record of active Army service at the time of release from active duty, 
retirement, or discharge.

	a.  Paragraph 1-4b(5) of the regulation in effect at the time stated that a  
DD Form 214 would not be prepared for enlisted Soldiers discharged for immediate 
reenlistment in the Regular Army.

	b.  Paragraph 2-4h(18) of the regulation currently in effect states that item 18 
documents the remarks that are pertinent to the proper accounting of the separating 
Soldier's period of service.  Subparagraph (c) states that for enlisted Soldiers with more 
than one enlistment period during the time covered by the DD Form 214, enter 
"IMMEDIATE REENLISTMENTS THIS PERIOD" and specify the appropriate dates.  For 
Soldiers who have previously reenlisted without being issued a DD Form 214 and who 
are later separated with any characterization of service except "honorable," enter 
"CONTINUOUS HONORABLE ACTIVE SERVICE FROM" (first day of service which 
DD Form 214 was not issued) UNTIL (date before commencement of current 
enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

	c.  Since 1 October 1979, military personnel discharged for the purpose of 
immediate reenlistment are no longer issued a separate DD Form 214.

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

	a.  Paragraph 3-7a states 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 states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to Soldiers whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10, in effect at the time, provided that a member who committed an 
offense or offenses under the UCMJ, for which the authorized punishment included a 
punitive discharge, could submit a request for discharge for the good of the service at 
any time after court-martial charges were preferred.  Commanders would ensure that an 
individual was not coerced into submitting a request for discharge for the good of the 
service.  Consulting counsel would advise the member concerning the elements of the 
offense or offenses, the type of discharge normally given under the provisions of this 
chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of 
the characterization of such a discharge.  An under other than honorable conditions 
discharge was 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)	 AR20180015761

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