ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE: 11 July 2019 

	DOCKET NUMBER:  AR20190005297


APPLICANT REQUESTS:  The applicant requests upgrade of his under other than 
honorable conditions (UOTHC) discharge 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 (Armed Forces of the United States Report of Transfer or 
Discharge) for period ending 7 January 1972

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 an upgrade so that he can request a 
headstone/marker.  When he was in the military he kept in contact with his mother.  On 
several occasions, his mother expressed to him that she was having problems with 
keeping up her household. He felt, since he was the only son, his mother needed his 
help to support her.

3.  On 6 March 1970, at the age of 17 years old, the applicant enlisted in the Regular 
Army for a term of 3 years.

4.  The record shows on 17 April 1970, the applicant accepted nonjudicial punishment 
(NJP) for stealing one pair of fatigue trousers from another Soldier.  

5.  On 14 May 1971, the applicant was convicted by special court-martial for three 
specifications of absent without leave (AWOL):  from 23 May 1970 – 28 August 1970, 
from 5 October 1970 – 16 March 1971, and from 22 March 1971 – 22 April 1971.  He 
was sentenced to confinement at hard labor for four months and forfeiture of pay for 
four months.  On 16 June 1971, the convening authority approved the sentence and 
ordered it executed, but the unexecuted portion of the sentence to confinement in 
excess of 60 days was suspended for 60 days.

6.  On 6 July 1971, he went absent without leave (AWOL) and on 4 August 1971, he 
was dropped from the rolls.  On 16 November 1971, he returned to military control.

7.  On 22 November 1971, court-martial charges were preferred against the applicant 
for being AWOL from 6 July 1971 and remaining absent until 15 November 1971.

8.  The applicant voluntarily requested discharge for the good of the service in lieu of 
trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10.  He consulted with legal counsel and 
was advised of the basis for the trial by court-martial, his available rights and the basis 
for voluntarily requesting discharge under the provision of AR 635-200, chapter 10.  The 
applicant elected not to submit a statement on his own behalf.  

9.  The applicant's chain of command recommended approval of his request and on 
21 December 1971, the appropriate separation authority approved the applicant's 
request, directing the applicant be reduced to the lowest grade and he be issued an 
undesirable discharge.  

10.  On 7 January 1972, he was discharged accordingly.  His service was characterized 
as UOTHC.  He completed 4 months and 14 days of total active service.  His DD Form 
214 shows:

*	He was awarded or authorized:

*	Rifle Expert Marksmanship Qualification Badge
*	National Defense Service Medal

*	528 days lost under Title 10, U.S. Code, Section 972  (AWOL for 423 days and 
confinement for 105 days)

11.  The applicant states he is requesting an upgrade so that he can request a 
headstone/marker.  When he was in the military he his mother expressed to him that 
she was having problems with keeping up her household and since he was the only 
son, he felt his mother needed his support.  His record shows he enlisted at the age of 
17 years old, he accepted one NJP for stealing, he was convicted by special court-
martial for three specifications of AWOL, charges were preferred against him for being 
AWOL, and he had 528 lost days, 423 days for AWOL and 105 days for confinement.  
He completed 4 months and 14 days of his 36 months contractual obligation.

12.  AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by 
court martial.  A member may be awarded an honorable or general discharge, if during 
the current enlistment period of obligated service he has been awarded a personal 
decoration or if warranted by the particular circumstances of a specific case.

13.  In reaching its determination, the Board can consider the applicant’s petition and 
service record 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 record and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s record of service, the 
frequency and nature of his misconduct, his statement regarding his absences and 
whether to apply clemency.  The Board found no mitigating factors in the record and the 
applicant provided no post-service accomplishments or letters of reference to support a 
clemency determination.  The Board determined there was insufficient evidence to 
support clemency and further 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 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, set forth the basic authority for the administrative separation of 
enlisted personnel, it states:

	a.  A Chapter 10 (Discharge for the Good of the Service) is applicable to 
members who had committed an offense or offenses for which the authorized 
punishment included a bad conduct or dishonorable discharge could submit a request 
for discharge for the good of the service.  The request could be submitted at any time 
after the charges had been preferred.  Although an honorable or general discharge was 
authorized, an under other than honorable conditions discharge was normally 
considered appropriate.  

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

	c.  A general discharge was a separation from the Army under honorable 
conditions.  When authorized, it was issued to a Soldier whose military record was 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	d.  When a member is to be issued a discharge under other than honorable 
conditions, the convening authority will direct his immediate reduction to the lowest 
enlisted grade.

3.  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)	 AR20190005297

4

1