ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  12 July 2019

	DOCKET NUMBER:  AR20190005692


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions (UOTHC) discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	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 15 January 1974

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 previously served his country honorably and was discharged 
on 15 January 1973.  During that term of service he served in Vietnam receiving the 
Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  It has been 
more than 45 years since he received his discharge of under other than honorable 
conditions, therefore; he respectfully requests that the Board upgrade his discharge to 
honorable.

3.  On 15 September 1970, at the age of 18 years old, the applicant enlisted in the 
Regular Army for a term of 3 years.  On 15 January 1973, he was honorably discharged 
for immediate reenlistment.  His DD Form 214, for period ending 15 January 1973, 
shows he was awarded or authorized:

*	National Defense Service Medal
*	Overseas Service Bar
*	Vietnam Service Medal
*	Republic of Vietnam Campaign Medal with 60 Device

4.  On 16 January 1973, he reenlisted for a term of 3 years.
5.  His record shows he accepted nonjudicial punishment (NJP) on:

*	27 February 1973 for being absent without leave (AWOL) from 6 February 1973 
and remaining absent until 13 February 1973
*	7 November 1973 for failing to go at the time prescribed to his appointed place of 
duty, punishment:  as part of his punishment his reduction to private first class 
(PFC)/E-3 was suspended for 90 days and his forfeiture of pay was suspended 
for 30 days; on 12 November 1973, both were vacated
*	26 November 1973 for disobeying a lawful order from his superior commissioned 
officer on two occasions 

6.  On 17 December 1973, the applicant’s immediate commander notified the applicant 
he was initiating action to separate him under the provisions of Army Regulation (AR) 
635-200, (Personnel Separations – Enlisted Personnel), Chapter 13.

7.  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 consideration of his case before a 
board, and elected not to submit statements in his own behalf.  

8.  In the immediate commander’s report/recommendation, the commander stated the 
specific reason for is recommendation was because of incidents of a discreditable 
nature with military authorities and shirking.  

9.  The chain of command recommended approval of the recommendation for 
separation and on 7 January 1974, the appropriate commander approved the 
separation, directing that the applicant be furnished an undesirable discharge and 
reduced to private one (PV1)/E-1. 

10.  On 15 January 1974, the applicant was discharged accordingly.  He was 
discharged under AR 635-200, paragraph 13 and his service was characterized as 
UOTHC with an Undesirable Discharge Certificate.  He completed 11 months and 
23 days net service this period.  His DD Form 214 shows he had 7 days lost from 
6 February 1973 – 12 February 1973 (AWOL).

11.  On 10 February 1976, the Army Discharge Review Board (ADRB) denied his 
petition to upgrade his discharge, determining that the applicant was properly 
discharged.  Again, on 16 May 1985, the ADRB denied his petition to upgrade his 
discharge, determining he was properly and equitably discharged.

12.  The applicant states he previously served his country honorably and during that 
term of service he served in Vietnam receiving the Vietnam Service Medal and the 
Republic of Vietnam Campaign Medal.  His record shows that he enlisted at the age of 
18 years old, he accepted three NJPs, and he had 7 days lost due to being AWOL.  He 
completed 11 months and 23 days of his 36 months contractual obligation.

13.  AR 635-200, chapter 13, separation for unfitness or unsuitability, paragraph 13-
5a(1), provided an individual would be subject to separation for unfitness if he or she 
exhibited frequent incidents of a discreditable nature with civil or military authorities and 
paragraph 13-5a(4) for 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. 

14.  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.

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 to include service in Vietnam, his conduct and efficiency ratings prior to 
reenlistment and a subsequent downturn in performance, the frequency and nature of 
his misconduct, the reason for his separation and whether to apply clemency.  The 
Board found sufficient in-service evidence to partially mitigate his behavior; 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 he received upon separation should be 
upgraded as a matter of clemency.

2.  After reviewing the application and all supporting documents, the Board found that 
partial relief was warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:XXX	:XXX	:XXX	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by amending 
his DD Form 214 for the period of service ending 15 January 1974 to reflect in item 13a. 
(Character of Service) – “General, under honorable conditions” vice “Under other than 
honorable conditions.”

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to changing his character of service to “Honorable”.



	  
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(1) under the provisions of unfitness, 
provided an individual would be subject to separation for unfitness if he or she exhibited 
frequent incidents of a discreditable nature with civil or military authorities and 
paragraph 13-5a(4) for 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.

   d.  A Soldier discharged from the service with an undesirable discharge will be 
reduced 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)	 AR20190005692

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