IN THE CASE OF:

BOARD DATE:  12 September 2019

DOCKET NUMBER:  AR20190000486


APPLICANT REQUESTS:  The applicant requests his service characterization of under 
other than honorable conditions (UOTHC) be upgraded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for Review of Discharge)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records 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.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number AR2002074133 on 24 September 2002.

3.  The applicant states he thought he was signing a chapter 13; it ended up being a 14, 
it was trickery.  He is a homeless Veteran and an upgrade would help him out.

4.  On 25 March 1980, the applicant enlisted in the Regular Army for three years at the 
age of 19.

5.  On 20 February 1981, he received non-judicial punishment (NJP) for wrongfully 
having in his possession, 10.54 grams of marijuana in hashish form.

6.  On 23 April 1982, he received another NJP for failing to go to his appointed place of 
duty; physical fitness test formation and for failure to go to his prescribed place of duty. 

7.  His record is void of a separation packet; however, on 14 May 1982, discharge 
orders were published with an effective date of discharge for the applicant as 22 May 
1982.  His DD Form 214 shows:   
*	Separation Date:  21 May 1982
*	Net Active Service:  2 years, 1 month, 27 days  
*	Separation Authority:  14-33B (1), AR 635-200
*	Type of Separation:  Discharge
*	Character of Service:  Under Other Than Honorable Conditions
*	Lost Time:  None 

8.  AR 635-200, Chapter 14 separates members who demonstrate or display patterns of 
misconduct, as evidenced by his multiple instances of misconduct and 
counseling.  Paragraph 1-18 states, Commanders will insure that adequate counseling 
and rehabilitative measures have been taken before initiating action to separate a 
member. Waiving rehabilitation applies when it would not be in the best interest of the 
Army as it would not product a quality Soldier.

9.  The applicant stated he believed he was signing a chapter 13 however, the complete 
facts and circumstance surrounding the applicant's discharge are not available.  The 
applicant's discharge packet is not filed in the official military personnel file 
(OMPF).  Due to the lack of evidence we are unable to determine the specific 
circumstance(s) that led to his discharge; however, although the applicant's separation 
packet is not available, in light of the DD Form 214, the Board presumes the applicant's 
leadership completed his separation properly. 

10.  The applicant requests an upgrade so that he may receive benefits.  The ABCMR is 
not authorized to grant requests for upgrade of discharges solely for the purpose of 
making the applicant eligible for veterans' benefits; however, in reaching its 
determination, the Board can consider the applicant’s petition and his service record in 
accordance with the published equity, injustice, or clemency guidance.
 
BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited honorable service, no meritorious 
personal awards, no wartime service and insufficient evidence of mitigating 
circumstances for the misconduct. Furthermore, the applicant provided no evidence of 
post-service honorable conduct that might have mitigated the discharge 
characterization. The Board agreed that the applicant’s discharge characterization is 
appropriate.




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 Army Board for Correction of Military Records 
(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.  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.  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.  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 
UOTHC discharge 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.  Only a general court-martial convening authority may 
approve an honorable discharge or delegate approval authority for an honorable 
discharge under this provision of regulation.
 
     d.  Paragraph 14-33b (1) provides for the separation when there is frequent incidents 
of discreditable nature with civil or military authorities.
 
     e.  Paragraph 1-18 waives the rehabilitation transfer because it would not be in the 
best interest of the Army as it would not product a quality Soldier
 
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)	 AR20190000486


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190000486
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ABCMR Record of Proceedings (cont)	AR20190000486


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