ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  3 June 2019

	DOCKET NUMBER:  AR20190001952


APPLICANT REQUESTS:  An upgrade of his under other than honorable conditions 
(UOTHC) 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 started his career on 20 November 1979, assigned to 3rd 
Battalion, 41st Infantry Regiment in the Federal Republic of Germany.  He reenlisted to 
serve with the 69th Transportation Company.  He was on his second enlistment when 
his career went bad.  He will admit that after getting married he went through a very 
tough time.  He should be able to receive a military identification card for serving his first 
three full years and two years after that.  This was not a court-martial discharge.

3.  The applicant enlisted in the Regular Army on 20 November 1979.  He reenlisted in 
the Regular Army on 10 June 1982.

4.  The applicant accepted non-judicial punishment on 6 June 1984, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for assault by 
striking another individual in the face with a closed fist and intentionally inflicting 
grievous bodily harm upon him, to wit a fractured skull, on or about 23 October 1983.

5.  The applicant’s record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing.  However, his DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he was discharged on 
17 January 1985, under the provisions of Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), paragraph 14-12b, by reason of misconduct – 
pattern of misconduct.  He was credited with 5 years, 1 month, and 28 days of net 
active service, and his service was characterized as UOTHC.

6.  The Board should consider the applicant's overall record and the statement he 
provides in accordance with the published equity, injustice, or clemency determination 
guidance.

BOARD DISCUSSION:

After review of the application and all evidence, 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 found the statement and 
evidence of honorable achievements in the form of a good conduct medal and five 
years of creditable service to be compelling.  The Board agreed that the applicant’s 
case warrants clemency in that the applicant’s previous honorable service and personal 
meritorious awards have mitigated the misconduct that resulted in the discharge 
characterization.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by amending the applicant’s 
DD Form 214 for the period ending “85-01-17” showing his characterization of service 
as “General Under Honorable Conditions,” the narrative reason as 
“Miscellaneous/General Reasons,” the separation code (SPD) as “JND”, and Authority 
as “AR 635-200, para 5-14.”


	  
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):

A review of the applicant's record shows his DD Form 214 (Certificate of Release or 
Discharge from Active Duty), for the period ending 17 January 1985, is missing 
important entries that affect his eligibility for post-service benefits.  As a result, amend 
the DD Form 214 by adding the following entries to item 18 (Remarks): 
*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 791120 UNTIL 820609



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 14 of this regulation establishes policy and prescribes procedures for 
separating members for misconduct.  Specific categories include minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, or absences without leave.  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 discharge under other than honorable conditions is normally 
considered appropriate.  However, the separation authority may direct a general 
discharge if such is merited by the Soldier's overall record.

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)	 AR20190001952

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