ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20190004124


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions discharge (UOTHC) to an honorable 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) in lieu of DD Form 149 (Application for Correction of Military 
Record)
*	DD Form 214 (Report of Separation from Active Duty)
*	Letter/character reference from Pastor B.J., dated 8 February 2019 
*	Letter from the Bay County Veterans Service, Panama City, FL, dated 
11 February 2019

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 states he is requesting for an upgrade because he would like to apply 
for Veterans Affairs Benefits and since his discharge from the U.S. Army he has been a 
productive citizen to society. 

3.  On 14 November 1972, at the age of 19 years old, the applicant enlisted in the 
Regular Army for a term of 3 years.

4.  His record shows he accepted nonjudicial punishment (NJP) on:

*	15 June 1973 for being derelict in the performance of his duties and failing to 
obey a lawful general regulation
*	26 July 1973 for failing to go at the time prescribed to his appointed place of duty 
and for being absent without leave (AWOL) from 18 July 1973 and remaining 
absent until 21 July 1973; punishment:  oral reprimand, 14 days restriction, 
14 days extra duty, reduction to the rank/grade of private one (E-1)/E-1 
(suspended for 30 days), and forfeiture of pay; the suspended punishment of 
reduction was remitted on 29 August 1973
*	18 December 1973 for failing to go at the time prescribed to his appointed place 
of duty and for being AWOL from 9 December 1973 and remaining absent until 
10 December 1973
*	15 October 1974 for being AWOL on two occasions:  from 1 August 1974 and 
remaining absent until 13 August 1974 and from 3 September 1974 and 
remaining absent until 12 September 1974.

5.  On 28 October 1974, the applicant’s immediate commander notified the applicant 
that he was initiating separation actions against him under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, for 
unfitness due to an established pattern for shirking.

6.  The applicant acknowledged he had been notified of the pending separation action 
against him and he had been advised by his consulting counsel of the basis for the 
contemplated action, understood his rights, waived personal appearance before a 
board, and elected not to submit statements in his own behalf.  

7.  The chain of command recommended approval of the separation action and on 
18 December 1974, the appropriate commander approved the recommendation for 
separation, directing the applicant be issued an Undesirable Discharge Certificate.

8.  On 19 December 1974, the applicant was discharged accordingly.  He was 
discharged under AR 635-200, paragraph 13-5a(4) and his service was characterized 
as UOTHC with an Undesirable Discharge Certificate.  He completed 2 years and 
6 days of total active service.  His DD Form 214 shows:

*	He was awarded or authorized:

*	National Defense Service Medal
*	M-16 Rifle Marksman Marksmanship Qualification Badge

*	Time Lost:  730718 – 730720; 740801 – 740812; 740903 – 70911; 741118 - 
741123" (AWOL for a total of 30 days)

9.  The applicant provides:

*	A letter/character reference from Pastor B.J., the applicant’s pastor, attesting to 
his character as a member of the church
*	A letter from the Bay County Veterans Service, Panama City, FL, listing 
documents which are being submitted to the Army Review Board Agency for 
consideration on behalf of the applicant

10.  The applicant states he is requesting for an upgrade because he would like to apply 
for Veterans Affairs Benefits and since his discharge from the U.S. Army he has been a 
productive citizen to society.  His record shows that he enlisted at the age of 19 years 
old, he accepted four NJPs, and he had 30 days lost due to being AWOL.  He 
completed 24 months and 6 days of his 36 months contractual obligation.

11.  In reaching its determination, the Board can consider the applicant's petition and his 
service record in light of the published DOD guidance on equity, injustice, or clemency.

12.  AR 635-200, chapter 13, separation for unfitness or unsuitability, paragraph 13-
5a(4), provided an individual would be subject to separation for unfitness if he or she 
exhibited an established pattern for shirking.  An individual separated by reason of 
unfitness will be furnished an undesirable discharge certificate, except that an 
honorable or general discharge certificate may be issued if the individual has been 
awarded a personal decoration or if warranted by the particular circumstances in his or 
her case.

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 overall record 
of service, the frequency and nature of his misconduct, a letter of support and character 
reference provided by the applicant and whether to apply clemency.  The Board found 
insufficient evidence of mitigation to overcome his pattern of misconduct, that clemency 
was not supported and determined that the character of service he received at 
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 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, provided for the separation of enlisted personnel from the Regular 
Army.  It states:

	a.  Chapter 13 established policy and prescribed procedures for separating Soldiers 
for unfitness and unsuitability.  Paragraph 13-5a(4) under the provisions of unfitness, 
provided an individual would be subject to separation if he or she exhibited an 
established pattern for shirking.  An individual separated by reason of unfitness will be 
furnished an undesirable discharge certificate, except that an honorable or general 
discharge certificate may be issued if the individual has been awarded a personal 
decoration or if warranted by the particular circumstances in his or her case.

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

	c.  A general discharge is a separation from the Army under honorable conditions of 
an individual whose military record is not sufficiently meritorious to warrant an 
honorable.

5.  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.


ABCMR Record of Proceedings (cont)	 AR20190004124

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