ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20190001067


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than 
honorable (UOTHC) discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Statement

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.  The applicant submitted a DD Form 149 and two self-authored statements (very 
similar in nature).  He states:
      
   a.  When he was 17 years old a recruiter came to Ohio and got a group of young 
kids and took them to his home in Ohio.  The recruiter convinced the applicant to join 
the Army to fulfill his duty to his country.  For a period of time [47 weeks? (Writing 
unclear)], they studied for a test with 20 questions that they had to pass before they 
could get in the Army.  Most of the test was yes or no answers.  It took him a week to 
memorize it.  
   
   b.  The recruiter told him to lie about the Army and how good it was.  The recruiter 
made plenty promises to him that he soon learned were just more lies to get him to join 
the Army, as he was 17 years old and could join the Army, but he had the mind of a 
10 or 11 year old child.  He could not adjust to the Army life.  The Army, in his mind, 
was the worse abuse.  
   
   c. He really tried to be a Soldier.  He weighed 108 pounds (lbs) and had the mental 
state of a 10 or 11 year old boy.  He remembers his first shock was going into the latrine 
and seeing another huge Black male shooting himself up with drugs through a needle in 
his vein.  He realized then that his recruiter had deceived him.  He kept trying to be a 
Soldier because his heart was very patriotic even if his mind and body could not keep 
up.  When he could not cope he would just go absent without leave (AWOL).  He 
received an undesirable discharge.
   
   d.  When the United States went to war in Iraq, he was a grown man and had a job 
welding torque rods for Abram tanks.  He felt like he had finally got a chance to serve 
his country.  He welded the best quality torque rods money could buy.
   
   e.  At the time of his enlistment he had a mind of a child and felt the recruiter took 
advantage of that fact to make money.  He cannot remember much about the dates and 
times that this occurred because of his mindset.  He is a 65 year old man now.  He 
suffered all his life because of his crooked enlistment recruiting officer.
   
   f.  He would go into the military today if he could.  He only asks the Board restore his 
honor before he dies of old age by changing his discharge to an honorable.

3.  On 16 July 1971, at the age of 17 years old and an 8th grade level education, he 
enlisted in the Regular Army for a term of 3 years.  He completed basic combat training 
and in route to his advanced individual training, he went AWOL.

4.  On 9 November 1971, the applicant was convicted by special court-martial for two 
specifications of being AWOL from on or about 8 August 1971 and remained absent 
until 1 September 1971, AWOL a total of 24 days, and from on or about 22 September 
1971 and remained absent until on or about 18 October 1971, AWOL a total of 26 days.  
He was sentenced to confinement at hard labor for sixty days and forfeiture of pay for 
two months.  On 15 November 1971, the convening authority approved the sentence 
and ordered it executed with the exception of the confinement, which was suspended 
for sixty days.  On 9 November 1971, the sentence to confinement was deferred.  On 
4 April 1972, the sentence to confinement was vacated and ordered executed.

5.  On 24 April 1972, the applicant was convicted by a special court-martial for one 
specification of being AWOL from on or about 23 November 1971 and remained absent 
until on or about 28 March 1972, AWOL for a total of 126 days.  He was sentenced to 
confinement at hard labor for two months and forfeiture of pay for two months.  On 
27 April 1972, the convening authority approved the sentence and ordered it executed.  
On 15 May 1972, the convening authority suspended the unexecuted sentence of 
forfeiture of pay until 28 June 1972.  On 19 June 1972, the unexecuted sentences of 
confinement at hard labor and forfeiture of pay were remitted.

6.  On 12 January 1973, charges were preferred against the applicant for one 
specification of being AWOL from on or about 14 October 1972 and remained absent 
until 26 December 1972, AWOL a total of 73 days.

7.  The applicant voluntarily requested discharge for the good of the service in lieu of 
trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10.  He consulted with legal counsel and 
was advised of the basis for the trial by court-martial, his available rights and the basis 
for voluntarily requesting discharge under the provision of AR 635-200, chapter 10.  The 
applicant elected not to submit a statement on his own behalf; however, a statement is 
attached, addressed "To Whom It May Concern."  In his statement he expressed how 
he was lied to by the recruiter; he did not like the Army; he lost his fiancé because of 
being away from home so long; he would be much better at home helping his mother 
raise his little brother and sister; and if his discharge was not granted he was sure that 
he would go AWOL again.

8.  The applicant's chain of command recommended approval of his request and on 
23 January 1973, the appropriate separation authority approved the applicant's request 
directing the applicant be reduced to rank/grade of private one(PV1)/E-1 and he be 
issued an Undesirable Discharge Certificate.  

9.  On 31 January 1973, he was discharged accordingly.  His service was characterized 
as UOTHC.  He completed 6 months and 24 days of total active service.  His DD Form 
214 (Armed Forces of the United States Report of Transfer or Discharge) shows:

*	He was awarded or authorized the M-16 Expert Marksmanship Qualification 
Badge
*	355 days lost under Title 10, United States Code 972:  8 August 1971 to 
1 September 1971, 22 September 1971 to 17 October 1971, 16 November 1971 
to 28 March 1972, 4 April 1972 to 27 June 1972, and 14 October 1972 to 
25 December 1972

10.  The applicant states that at the time of his enlistment he had a mind of a child and 
felt the recruiter took advantage of that fact to make money.  The record shows the 
applicant enlisted at the age of 17 years old, he was convicted by two special court-
martial for three specifications of being AWOL, he was pending a third court-martial for 
the same offense, and during this period of service he was AWOL for a total of 355 
days.  The applicant completed 6 months of his 36 months contractual obligation.

11.  AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by 
court martial.  A member may be awarded an honorable or general discharge, if during 
the current enlistment period of obligated service he has been awarded a personal 
decoration or if warranted by the particular circumstances of a specific case.

12.  In reaching its determination, the Board can consider the applicant’s petition and 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

13.  The ABCMR is not an investigative body and decides cases based on the evidence 
that is presented in the military records provided and the independent evidence 
submitted with the application.  The applicant has the burden of proving an error or 
injustice by a preponderance of the evidence.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD policy for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his age and 
education level, the frequency and nature of his misconduct, the reason for his 
separation and whether to apply clemency.  The Board found insufficient mitigation for 
his misconduct, and the applicant provided no evidence of post-service 
accomplishments 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 at separation was not in error or unjust and that no correction to the 
records was warranted. 

2.  After reviewing the application and all supporting documents, the Board found the 
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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set forth the basic authority for the administrative separation of 
enlisted personnel, it states:

	a.  A Chapter 10 (Discharge for the Good of the Service) is applicable to members 
who had committed an offense or offenses for which the authorized punishment 
included a bad conduct or dishonorable discharge could submit a request for discharge 
for the good of the service.  The request could be submitted at any time after the 
charges had been preferred.  Although an honorable or general discharge was 
authorized, an under other than honorable conditions discharge was normally 
considered appropriate.  

	b.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization is predicated upon proper 
military behavior and proficient performance of duty during the member's current 
enlistment or period of obligated service with due consideration for the member's age, 
length of service, grade, and general aptitude.

	c.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.

	d.  When a member is to be issued a discharge under other than honorable 
conditions, the convening authority will direct his immediate reduction to the lowest 
enlisted grade.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records regarding equity, injustice or clemency determinations. 
Clemency generally refers to relief specifically granted from a criminal sentence and 
BCMRs 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 discharge, which may be 
warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated 
principles in the guidance as well as eighteen individual factors related to the applicant.

4.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military 
records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins 
its consideration of each case with the presumption of administrative regularity, which is 
that what the Army did was correct.  The ABCMR is not an investigative body and 
decides cases based on the evidence that is presented in the military records provided 
and the independent evidence submitted with the application.  The applicant has the 
burden of proving an error or injustice by a preponderance of the evidence.  

ABCMR Record of Proceedings (cont)	 AR20190001067

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