ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  23 July 2019

	DOCKET NUMBER:  AR20190004322


APPLICANT REQUESTS:  In effect, an upgrade of his under other than honorable 
conditions (UOTHC) 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), dated 22 March 2019
*	Department of Veterans Affairs (VA) benefits letter, dated 11 March 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, until recently he thought he had an under honorable conditions 
(general) discharge because he used the GI Bill to go to school.  He was given no 
papers at the time of his discharge.  He was an excellent Soldier, who made the rank of 
specialist four (SP4) out of advanced individual training.  He only got into a little trouble 
when he was late getting back to base for a training mission.

3.  Following a prior period of honorable Regular Army service, the applicant reenlisted 
in the Regular Army on 8 April 1974.

4.  The applicant received adverse counseling on 10 separate occasions between  
4 November 1975 and 22 January 1976, for diverse reasons including but not limited to 
his poor attitude, appearance, and hygiene; disrespectful language; an admission of 
illegal drug use both prior to and during service; possession of hashish; and failure to 
maintain standards as evident during inspections.

5.  The applicant accepted nonjudicial punishment, under Article 15 of the Uniform Code 
of Military Justice (UCMJ), on the following dates for the indicated offenses:

*	on 11 February 1975, for violation of a general order by speeding on base, on or 
about 15 January 1975
*	on 12 March 1975, for violation of a general order by speeding on base, on or 
about 31 January 1975
*	on 8 April 1975, for being absent without leave from on or about 17 March 1975 
through on or about 4 April 1975
*	on 12 December 1975, for possession of a small amount of marijuana, on or 
about 10 December 1975  
*	on 30 December 1975, for willfully disobeying a lawful order from a 
commissioned officer on two separate occasions and for willfully disobeying a 
lawful order from a noncommissioned officer (NCO), on or about  
22 and 27 December 1975
*	on 23 January 1976, for disrespectful language toward an NCO and willfully 
disobeying a lawful order from an NCO, on or about 22 January 1976

6.  The applicant's commander recommended his bar to reenlistment on 8 January 
1976.  The applicant acknowledged the bar recommendation on 9 January 1976.  The 
approval authority decision memorandum is not available for review in this case.

7.  The applicant was afforded a mental status evaluation on 21 January 1976.  The 
evaluation found no medical or psychological conditions and determined he was 
competent to understand and participate in any board proceedings.

8.  The applicant's commander notified the applicant on 22 January 1976 of his intent to 
initiate actions to separate the applicant under the provisions of Army Regulation  
635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a (1) for 
unfitness ? frequent incidents of a discreditable nature with civil or military authorities.

9.  The applicant acknowledged the proposed separation on 22 January 1975 and 
waived his rights to counsel; his right to appear before or have his case heard by a 
board of officers; or his right to submit a statement on his own behalf.  He further 
acknowledged he understood that if he was discharged with an undesirable discharge, 
he could be deprived of many or all Army benefits, he could be ineligible for many or all 
benefits administered by the VA, and he could be deprived of his rights and benefits as 
a veteran under both Federal and State laws.  

10.  The applicant's commander formally recommended his separation under the 
provisions of Army Regulation 635-200, paragraph 13-5a (1), by reason of the 
applicant's unfitness for further military service.  The applicant's chain of command 
recommended approval of the separation.  The separation authority approved the 
recommendation on 2 March 1976 and directed the applicant be discharged under the 
provisions of Army Regulation 635-200, paragraph 13-5a (1), for unfitness, and that he 
be issued a DD Form 258A (Undesirable Discharge Certificate).

11.  A memorandum dated 10 March 1976 notes the applicant entered the drug and 
alcohol program on 17 December 1975 and was declared a rehabilitation failure on 
2 February 1976, due to abuse of cannabis, barbiturates and psychostimulants.

12.  The applicant was discharged on 12 March 1976.  The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-200, paragraph 
13-5a (1) with his service characterized as UOTHC.  His DD Form 214 further shows he 
was discharged in the rank/grade of private/E-1.

13.  The Army Discharge Review Board denied the applicant's request for a discharge 
upgrade on 9 August 1983.

14.  The Board may consider the applicant's prior honorable discharge for consideration 
granting relief 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, his bar to reenlistment and 
rehabilitation program failure, the reason for his separation and whether to apply 
clemency.  The Board found insufficient evidence of in-service mitigation for his frequent 
misconduct and the applicant provided no evidence of post-service achievements or 
letters of reference in support of a clemency determination.  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 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.  
The regulation provides 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.  Paragraph 13-5(a), as then in effect, provided for the separation for unfitness, 
which included frequent incidents of a discreditable nature, sexual perversion, drug 
abuse, shirking, failure to pay just debits, failure to support dependents and 
homosexual acts.  When separation for unfitness was warranted a UD was 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)	 AR20190004322
	
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