ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  3 May 2019

	DOCKET NUMBER:  AR20180016522


APPLICANT REQUESTS: In effect, that 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 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, 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 in effect, his commanding officer gave him false information.  
His commanding officer told him and seven other Soldiers that they would be getting a 
general discharge and not an undesirable discharge.  He was told if he volunteered to 
get out earlier then what he had signed up for, in effect, he would get a general 
discharge.  

3.  The applicant enlisted in the Regular Army on 12 August 1969.

4.  Before a special court-martial on 4 August 1971, at Fort Knox, Kentucky, the 
applicant was convicted of two specifications of absenting himself without authority, 
from on or about 23 June 1971 through on or about 29 June 1971, and from on or about 
1 July 1971 through on or about 14 July 1971.

5.  The applicant's record does not contain a separation packet.  However, it does 
contain a DD Form 214 that shows he was discharged on 24 November 1971, under the 
provisions of Army Regulation 635-212 (Personnel Separations – Unfitness and 
Unsuitability), Separation Program Number (SPN) 28B.  His service was characterized 
as UOTHC.
6.  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. 

7.  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):

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 635-212, in effect at the time, set forth the policy and prescribed 
procedures for discharging enlisted personnel for unsuitability.  Action was to be taken 
to discharge an individual for unsuitability when, in the commander's opinion, it was 
clearly established that:  the individual was unlikely to develop sufficiently to participate 
in further military training and/or become a satisfactory Soldier or the individual's 
psychiatric or physical condition was such as to not warrant discharge for disability.  
Unsuitability included inaptitude, character and behavior disorders, disorders of 
intelligence and transient personality disorders due to acute or special stress, apathy, 
defective attitude, and inability to expend effort constructively, enuresis, chronic 
alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when 
psychiatric indications are involved, the medical officer must be a psychiatrist, if one 
was available.  A general or honorable discharge was considered appropriate.

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)	 AR20180016522

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