ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  15 August 2019

	DOCKET NUMBER:  AR20190002796


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded.

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), dated 8 January 2019
*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 8 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 he did not receive his due process during his discharge.  He 
was not charged with a crime, counseled about the reasons for his separation, or given 
an opportunity to seek legal counsel. 

3.  The applicant enlisted in the Regular Army on 28 February 1977 and was honorably 
discharged on 27 September 1977 for the purpose of immediate reenlistment.  He 
reenlisted on 28 September 1977.

4.  The applicant received nonjudicial punishment under Article 15 of the Uniform Code 
of Military Justice (UCMJ) on:

*	9 March 1978, for possession of marijuana 
*	29 September 1978, for violation of a command standing order
*	4 June 1979, for disrespect toward a commissioned officer 
*	30 October 1979, for being absent without leave from on or about 22 October 
1976 to on or about 23 October 1979

5.  The applicant executed a 9 month extension of obligated service on 27 May 1981.
6.  It appears court-martial charges were preferred against the applicant for violations of 
the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for 
review.

7.   A DA Form 3822-R (Report of Mental Status Evaluation), dated 18 June 1982, 
indicates the applicant was being evaluated for processing of separation under Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 action.  
He was medically cleared for any action deemed appropriate by the command.

8.  The applicant appears to have requested separation in lieu of trial by court-martial; 
however, the related separation processing documents are not available for review in 
this case.

9.  The applicant was discharged on 24 June 1982.  The DD Form 214 (Certificate of 
Release or Discharge from Active Duty) he was issued shows he was discharged under 
the provisions of Army Regulation 635-200, Chapter 10, for the good of the service – in 
lieu of trial by court-marital, and his service characterization was UOTHC.

10.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge.  Subsequent to being charged, he would have with 
consulted 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.

12.  The Board should consider the applicant's statement and overall military service in 
accordance with the published equity, injustice, or 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, the frequency and nature of his misconduct, the absence of a separation 
packet, the authority for his discharge and whether to apply clemency.  The Board found 
the applicant provided no evidence of post-service achievements or letters of reference 
in support of a clemency determination.  The Board found there was insufficient 
evidence to support a change to the applicant’s record.  Based on a preponderance of 
evidence, the Board determined that the character of service the applicant received 
upon separation 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, 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 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
Paragraph 2-9 states that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence. 

3.  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. 
A characterization of under honorable conditions may be issued only when the reason 
for the Soldier’s separation specifically allows such characterization.

   c.  Chapter 10 provides 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.

4.  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)	 AR20190002796
	
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