ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  26 July 2019

	DOCKET NUMBER:  AR20190002074


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
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 23 January 2019

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, in effect:

	a.  He started his military career in 1962 and served sixteen years in the Army with 
three previous honorable discharges.  He served two tours in Vietnam, one tour in 
Korea, and three tours in Germany.  He attended the Defense Department Human 
Relations Institute and Army Recruiting School.  He has also been an instructor of 
power training, a shop foreman, and a motor sergeant.  

	b.  He realizes that he was wrong and regrets his action.  He is asking that the Board 
consider his previous service with three honorable discharges, his good standing as a 
good employee, and the merit of him being a business owner.  He has abided by all 
laws, rules, and regulations and has since became a deacon in the church.  He has 
realized his mistake and the effects it has had on his life.          

3.  Following multiple periods of prior honorable service that included service in the 
Republics of Vietnam and Korea and the Federal Republic of Germany, the applicant 
reenlisted in the Regular Army on 26 May 1976.  

4.  The applicant attained the rank/grade of staff sergeant (SSG)/E-6 and was awarded 
the Army Good Conduct Medal (1st award), Army Occupation Medal (Berlin), National 
Defense Service Medal, Republic of Vietnam Service Medal, Overseas Service Ribbon, 
Republic of Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross 
with Palm Citation.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows 
he completed the following overseas tours: 

*	Germany, during the period of 6 July 1962 through 28 June 1965
*	Vietnam, during the period of 26 April 1966 through 25 April 1967
*	Germany, during the period of 23 February through 9 August 1970
*	Vietnam, during the period of 3 October 1970 through 2 October 1971
*	Korea, during the period of 28 July 1974 through 24 June 1975

5.  Court-martial charges were preferred against the applicant on 5 July 1983 for 
violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge 
Sheet) shows he was charged with being absent without leave (AWOL) from on or 
about 15 March 1979 through on or about 28 June 1983.

6.  The applicant consulted with counsel on 6 July 1983.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an UOTHC discharge, and the procedures and rights that were available to him.  
	  
	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-
martial.  In his request for discharge, he acknowledged his understanding that by 
requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense that also authorized the imposition of a bad conduct or dishonorable 
discharge.  He further acknowledged he understood that if his discharge request was 
approved he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  He was advised he could submit any statements he desired in his own behalf.  
He did not make a statement in his own behalf.  

7.  Consistent with the recommendations of the chain of command, the separation 
authority approved the applicant's request for discharge on 22 July 1983, under the 
provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and 
directed that he be reduced to the lowest enlisted grade and be discharged UOTHC.

8.  The applicant was discharged on 10 August 1983, under the provisions of Army 
Regulation 635-200 (Personnel Separations), Chapter 10, by reason of administrative 
discharge – conduct triable by court martial.  His DD Form 214 (Certificate of Release or 
Discharge from Active Duty) confirms his service was characterized as UOTHC.

9.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

10.  The Board should consider the applicant's statement and prior service in 
accordance with the published equity, injustice, and clemency determination guidance.

BOARD DISCUSSION:

1.  The Board carefully 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, his record of 
service to include two tours in Vietnam, the length of his absence and whether to apply 
clemency.  The Board found no statement from the applicant regarding his AWOL and 
no mitigating factors while he was in service.  The applicant provided a statement, but 
provided no other evidence of post-service achievements or letters of reference in 
support of a clemency consideration.  The Board found insufficient evidence to 
overcome the misconduct that led to his separation and determined by preponderance 
of evidence that the character of service he received at discharge 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, U.S. Code, 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, in effect at the time, set 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 UOTHC discharge 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.


ABCMR Record of Proceedings (cont)	 AR20190002074

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