BOARD DATE:  14 April 2020

DOCKET NUMBER:  AR20180016860


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), dated 15 October 2018
*	Veteran Service Office Representative letter, dated 25 October 2018

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:

	a.  His late father forced him to join the Army.  He tried to get through the three years 
and Vietnam with little success.  He struggled with substance abuse and became a 
heroin addict while in Vietnam.  Due to improper health care while in the field, he started 
having cluster headaches and could not get proper treatment.  He ended up turning to 
heroin to deal with the severe condition.

	b.  He was given instructions from the Staff Judge Advocate (SJA) office to write a 
couple of checks that he knew would bounce.  He was told that he should repay the 
monies to the bank and not be prosecuted by civilian authorities; however, the SJA 
would pursue the case and get him out of the Army.  The situation was very negative at 
Fort Hood with heroin and drugs everywhere, he just wanted to get out and go home.  
He did not realize it would be under the condition that it became.

	c.  He was told the Veterans Administration (VA) would handle this action; however, 
he learned that they only changed his discharge status for the purpose of health care 
and compensation.  His disability rating was upgraded from 10 percent to 60 percent so 
he could receive un-employability.

3.  The applicant enlisted in the Regular Army on 17 January 1969.

4.  The applicant served in the Republic of Vietnam from on or about 24 August 1969 
through on or about 23 August 1970.

5.  The applicant accepted non-judicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated 
offenses:

*	on 17 April 1969, for being absent without leave (AWOL) from on or about 7 April 
1969 to on or about 9 April 1969
*	on 19 February 1971, for failure to go to his appointed place of duty on or about 
13 February 1971

6.  A Certificate of Unsuitability for Enlistment/Reenlistment, dated 25 February 1971, 
states the applicant had a record of misconduct and had received two Article 15s.  His 
offenses ranged from AWOL to habitual shirking of responsibility.  He had made no 
attempt to improve his performance.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) indicates he was 
reported AWOL from:

*	on or about 12 April 1971 to on or about 13 April 1971
*	on or about 3 May 1971 to on or about 7 May 1971

8.  The applicant's record does not contain his separation packet.  However, the 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he 
was issued confirms he was discharged on 16 July 1971, under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, and his 
service was characterized as UOTHC.

9.  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.

10.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting 
documents and the applicant’s military records.  The applicant has a service connected 
disability rating of 50% for migraine headaches.  On 20 Aug 2018, he was evaluated by 
a psychologist to address sleep difficulty and chronic pain from headaches.  He has no 
records in iPERMS.  The Armed Forces Health Longitudinal Technology Application 
(AHLTA), & Health Artifacts Image Management Solutions (HAIMS) did not exist at the 
time of the applicant’s service.  A review of the available documentation did not find 
medical evidence to support a behavioral health diagnosis at the time of his discharge. 
The applicant asserts he wrote bad checks at the direction of Staff Judge Advocate 
office but there are no military records with respect to pending court martial charges or 
the misconduct that resulted in his Chapter 10 separation.  Without knowing the type of 
misconduct and having a diagnosed behavioral health condition to consider with 
respect to mitigation a medical opine cannot be provided.

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

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that 
partial relief was warranted.  The Board carefully considered the applicants request, 
supporting documents, evidence in the records, the medical advisory, and published 
DoD guidance for consideration of discharge upgrade requests.  The Board considered 
the applicant's statement, his record of service to include service on Vietnam, the 
charges preferred, the applicant’s request for discharge and the reason for his 
separation and whether to apply clemency.  The Board considered nature of the 
misconduct and the resulting character of service.  Based on a preponderance ofe 
evidence, the Board determined that there is sufficient evidence to grant partial relief 
based upon the applicant’s combat service and as a matter of clemency.  



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 
the applicant’s DD Form 214 for the period ending 16 July 1971 showing his character 
of service as general, under honorable conditions.

2.  The Board further determined that 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 a discharge upgrade 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.

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 635-200 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 10 of that regulation provides, in pertinent part, 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 under other than honorable 
conditions is normally 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)	 AR20180016860

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20180016860

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ABCMR Record of Proceedings (cont)	AR20180016860


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