ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  18 April 2019

	DOCKET NUMBER:  AR20180016036


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States)
*	DD Form 214 (Report of Separation from Active Duty), for the period ending  
20 March 1979 

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 deserves an honorable discharge.  He completed two years 
and three months of active duty service.  He was discharged because he came in late.  
After he went to a retaining program, in effect he did not return to Headquarters in time.  

3.  The applicant enlisted in the Regular Army on 17 August 1976. 

4.  The applicant's record contain four DA Forms 2627 (Record of Proceedings Under 
Article 15, [Uniform Code of Military Justice] UCMJ) that show he accepted nonjudicial 
punishment (NJP), under the provisions of Article 15 of the UCMJ, on the following 
dates for the indicated offenses:

   a.	On 5 December 1977, for wrongfully possessing marijuana in the amount of  
.01 ounces, on or about 30 November 1977.

   b.	On 11 December 1977, for failing to go to his appointed place of duty at the 
prescribed time, on or about 28 April 1978. 
   c.	On or about 1 June 1978, for disrespecting a superior commissioned officer, in 
effect disobeying a direct order from a commissioned officer, on or about 10 May 1978. 

   d.	On 6 October 1978, for disobeying a direct order from a superior 
noncommissioned officer, on or about 1 October 1978. 

5.  The applicant's commander notified the applicant on 24 October 1978 that he was 
being recommended for separation under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), paragraph 14-33b (1), for misconduct.  
The applicant acknowledged receipt of the proposed separation memorandum on  
25 October 1978.

6.  The applicant consulted with counsel on 7 November 1978 and was advised of the 
basis for the contemplated action to separate him under Army Regulation 635-200, 
paragraph 14-33b and its effect; of the rights available to him; and of the effect of any 
action taken by him to waive his rights.  He further acknowledged his understanding that 
he could expect to encounter substantial prejudice in civilian life if other than honorable 
be condition discharge, was issued to him.  He requested appearance before, and 
consideration of his case by, a board of officers constituting an administrative 
separation board.  He elected not to submit a statement in his own behalf.

7.  The applicant's commander formally recommended the applicant's separation under 
the provisions of Army Regulation 635-200, paragraph 14-33b (1), for misconduct.  

8.  The applicant requested to appear before an administrative separation board.  It 
appears that a board convened and recommended the applicant's separation from 
service; however, the board record of proceedings is not available for review.

9.  The separation authority approved the board's recommendation for discharge on  
7 March 1979 and directed that the applicant be separated with a UOTHC discharge.

10.  The applicant was discharged on 20 March 1979, under the provisions of Army 
Regulation 635-200, paragraph 14-33b (1), for misconduct – frequent incidents of a 
discreditable nature with military authorities.  His DD form 214 confirms his service was 
characterized as UOTHC.

11.  Army Regulation 635-200 sets policies, standards, and procedures to ensure the 
readiness and competency of the force while providing for the orderly administrative 
separation of Soldiers for a variety of reasons.

12.  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 
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):

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 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 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities.  Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely 
to succeed.  A discharge under other than honorable conditions is normally appropriate 
for a Soldier discharged under this chapter.  However, the separation authority may 
direct a general discharge if such is merited by the Soldier’s overall record.

3.  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)	 AR20180016036

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