ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20180016870


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)

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 did not receive a hearing when he was discharged and did 
not have the opportunity to provide his side of the story.

3.  The applicant enlisted in the Regular Army on 21 May 1969.

4.  The applicant was reported by his unit as absent without leave (AWOL), from on or 
about 4 July through on or about 5 July 1969.  

5.  The applicant was reported by his unit as AWOL, on or about 29 August 1970.  He 
was dropped from his rolls of the Army as a deserter on 26 September 1970.  

6.  Court-martial charges were preferred against the applicant on 23 September 1970.  
His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from 
his unit with the intent to remain absent permanently. 

7. The applicant was returned to military control on or about 25 March 1973.

8.  The applicant signed a Waiver to Right of Counsel on 29 March 1973.


9.  After consulting with legal counsel on 10 April 1973, the applicant acknowledged he 
had been advised of the basis for the contemplated separation under Army Regulation 
635-206 (Personnel Separations ? Discharge ? Misconduct for AWOL/Desertion), the 
effects of a UOTHC discharge, and the procedures and rights that were available to 
him.  He waived his right to consideration of his case by, and personal appearance 
before, a board of officers.  He declined to submit a statement in his own behalf. 

10.  It is presumed the separation authority approved the applicant's discharge under 
the provisions of Army Regulation 635-206; however, the approval document is not 
available for review.

11.  The applicant again went AWOL on 18 April 1973 and was discharged in an AWOL 
status.

12.  The applicant was discharged on 4 May 1973.  The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-206, paragraph 
45b, 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 was issued a DD Form 258A 
(Undesirable Discharge Certificate). 

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

BOARD DISCUSSION:

1.  The Board considered the applicant’s request, supporting documents, evidence in 
the records and published DoD guidance for consideration of discharge upgrade 
requests.  The Board considered the applicant’s statement regarding a hearing, his 
record of service, the frequency and nature of his misconduct, the reason for his 
separation and whether to apply clemency.  The Board found no evidence of in-service 
mitigating factors for the misconduct and 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 
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.  

	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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

4.  Army Regulation 635-206, then in effect, provided that an enlisted member who had 
deserted or committed an AWOL offense of more than 1 year, could be separated 
administratively if he were afforded a board of officers and the associated rights of that 
procedure even though the available evidence of the offense might prove insufficient to 
warrant conviction in a trial by court-martial.  When such separation was warranted an 
undesirable discharge was considered appropriate.

5.  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)	 AR20180016870
	
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