ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  10 June 2019

	DOCKET NUMBER:  AR20190002172


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgrade to an under honorable conditions (general) discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 4 December 1973
*	Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans 
Service Organization as Claimant’s Representative), dated 8 January 2019
*	three character reference letters 

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 was a young man who did not know how to get out of the 
military under hardship conditions.  His mother became ill while he was stationed at Fort 
Dix, NJ.  He went home on leave during the Christmas of 1972; his mother became ill 
and he was the only son with two sisters living at a different location.  When he returned 
back to his unit, he received a phone call from his father explaining that his mother was 
becoming sicker and sicker and they needed him home.  Instead of contacting his 
company commander or first sergeant, he took it upon himself to go home and take 
care of his mother and father.

3.  The applicant enlisted in the Regular Army on 29 November 1972.

4.  Court-martial charges were preferred against the applicant on 15 August 1973, for 
violations of the Uniform Code of Military Justice (UCMJ).  Specifically, he was charged 
with being absent without leave (AWOL) from on or about 8 February 1973 through on 
or about 13 August 1973.

5.  The applicant consulted with legal counsel on or about 31 October 1973.

	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 under other than honorable conditions 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.  
His election shows he elected not to submit a statement.

6.  The separation authority approved the applicant's request for discharge on 
12 November 1973, under the provisions of Army Regulation 635-200, Chapter 10, for 
the good of the service.  The separation authority directed that the applicant be reduced 
to the lowest enlisted grade and be issued a DD Form 258A (Undesirable Discharge 
Certificate).

7.  The applicant was discharged on 4 December 1973.  The DD Form 214 he was 
issued confirms his service was characterized as UOTHC.  

8.  The applicant provides three character reference letters attesting to his religious 
faith, character, and work ethic.

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined that there is 
sufficient evidence to grant relief.  The Board agreed that the applicant’s case warrants 
clemency in that the applicant was discharged for only one instance of misconduct and 
the applicant’s post-service honorable conduct has mitigated the single instance of 
misconduct resulting 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 “4 DEC 1973” showing his characterization of 
service as “General Under Honorable Conditions.”


	  
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 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 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 discharge UOTHC 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190002172

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