ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  9 August 2019

	DOCKET NUMBER:  AR20190006306


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552) with self-authored statement

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 is not guilty of any charges brought against him.  At the 
request of his attorney he accepted a less than honorable discharge.  He was told that 
since he had two honorable discharges and was nearing his expiration term of service 
(ETS) date, he should just accept any discharge and leave the service.  His attorney did 
not give him the correct advice and he would not have been found guilty of any charges.  
At the time of the alleged incident, the accuser and the applicant were seeing each 
other; the accuser had recently separated from her boyfriend.  They did get back 
together and the applicant was told this was a way to get back at him because the 
boyfriend thought the applicant had something to do with their breakup.

3.  The applicant enlisted in the Regular Army on 2 February 1973 and was honorably 
discharged on 22 April 1976 for the purpose of immediate reenlistment.  He reenlisted in 
the Regular Army on 23 April 1976 and was honorably discharged on 18 July 1979 for 
the purpose of immediate reenlistment.  He was issued separate DD Forms 214 for 
these prior periods of honorable service; however, these documents are not available 
for review.

4.  The applicant reenlisted in the Regular Army on 19 July 1979.

5.  The applicant accepted non-judicial punishment on 24 December 1981, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for operating a 
vehicle while drunk, on or about 2 October 1981, in the Federal Republic of Germany.

6.  The applicant’s record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing.  However, his DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he was discharged on 
1 June 1983, under the provisions of Army Regulation 635-200 (Personnel Separations 
– Enlisted Personnel), Chapter 10, for the good of the service – in lieu of court-martial.  
He was credited with 3 years, 10 months, and 13 days of net active service, and his 
service was characterized as UOTHC.

7.  The issuance of a discharge under the provisions of Army Regulation 635-200, 
Chapter 10, required the applicant to have requested from the Army – voluntarily, 
willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all 
requirements of law and regulation were met and the rights of the applicant were fully 
protected throughout the separation process.  The applicant has provided no evidence 
that would indicate the contrary.

8.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief.  The board applied Office of the Secretary of 
Defense standards of liberal consideration and clemency to the complete evidentiary 
record, including the applicant’s statement and did not find any evidence of error, 
injustice, or inequity; the applicant had limited creditable service, no wartime service 
and the applicant provided no evidence of mitigating circumstances for the misconduct 
that resulted in the discharge.  Therefore, the Board agreed that the applicant’s 
discharge characterization is appropriate. 


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):

N/A

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 635-200 sets forth the basic authority for the separation of enlisted 
personnel.

	a.  Paragraph 3-7a states 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 states a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to Soldiers whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10, in effect at the time, provided that a member who committed an 
offense or offenses under the UCMJ, for which the authorized punishment included a 
punitive discharge, could submit a request for discharge for the good of the service at 
any time after court-martial charges were preferred.  Commanders would ensure that an 
individual was not coerced into submitting a request for discharge for the good of the 
service.  Consulting counsel would advise the member concerning the elements of the 
offense or offenses, the type of discharge normally given under the provisions of this 
chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of 
the characterization of such a discharge.  An under other than honorable conditions 
discharge was normally considered appropriate.

3.  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.  
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190006306

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