ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 August 2019

	DOCKET NUMBER:  AR20190006445


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an under honorable conditions (general) 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), dated 13 April 2019
*	DD Form 214 (Certificate of Release or Discharge from Active Duty), for the 
period ending 17 January 1983
*	Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of 
Claim), dated 31 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:

	a.  In November 1977, he arrived at Fort Gordon, Georgia for eight weeks of basic 
training.  Not long after he arrived, he was appointed squad leader in the acting rank of 
private first class.  He graduated from basic training and moved on to his military 
occupational specialty (MOS) training.  After he graduated from training, he was 
assigned to Fort Sill, Oklahoma.

	b.  He and some other Soldiers were awarded a weekend furlough for being the 
most efficient on a successful mission.  He was leaving the barracks in civilian clothes 
to go on furlough when a second lieutenant walked up the sidewalk and demanded that 
the applicant salute him.  He did not salute the second lieutenant and blew it off.  When 
he came back from furlough, he was brought up on charges for not saluting a 
commanding officer.  He was reduced in rank and was confined to the barracks.

	c.  A short time later, his great uncle died and he was granted emergency leave to 
attend the funeral.  When it was time for him to return, he could not stop thinking about 
what had happened to him with the lieutenant.  He did not want to return, he was young 
and made a bad decision.  No one ever came to look for him and no warrant was ever 
issued for him.

	d.  He now realizes he made a bad decision that caused repercussions that could 
have been avoided by a salute.  He really needs health insurance and a VA loan so that 
when he is gone, his remaining family will have a place they can stay.

3.  The applicant's complete military records are not available for review.  A complete 
and thorough search for his military records was conducted; however, only a very 
limited record was recovered.

4.  The applicant enlisted in the Regular Army on 9 November 1977.

5.  The applicant accepted non-judicial punishment on 2 June 1978, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful 
appropriation of a 1977 Malibu Classic, the property of another Soldier, on or about  
16 April 1978.

6.  The applicant's available record does not contain a complete separation packet; 
however it does contain a memorandum for record, dated 17 January 1983, subject:  
Discharge in Absentia - [Applicant], which shows the applicant had been absent without 
leave (AWOL) since 11 July 1978 and was dropped from rolls (DFR) on 8 August 1979.  
He was never reported AWOL/DFR by his assigned unit.  

7.  The applicant was discharged in absentia on 17 October 1983.  His DD Form 214 
confirms he was discharged under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct – 
desertion.  His service was characterized as UOTHC.

8.  The Board should consider the applicant's overall record and the statement he 
provides 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, the frequency and 
nature of his misconduct, the lack of a separation packet, the discharge memorandum 
and whether to apply clemency.  The Board found insufficient evidence of in-service 
mitigating factors 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 at 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 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.  

	c.  Chapter 14 of this regulation establishes policy and prescribes procedures for 
separating members for misconduct.  Specific categories include minor disciplinary 
infractions, a pattern of misconduct, commission of a serious offense, conviction by civil 
authorities, desertion, or absences without leave.  Action will be taken to separate a 
member for misconduct when it is clearly established that rehabilitation is impracticable 
or is unlikely to succeed.  A discharge under other than honorable conditions is normally 
considered appropriate.  However, the separation authority may direct a general 
discharge if such is merited by the Soldier's overall record.

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.

ABCMR Record of Proceedings (cont)	 AR20190006445

4

1