ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008012


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
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), dated 13 May 2019
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 19 October 1973
*	Pepin County Veterans Service Office Letter, dated 13 May 2019
*	Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of 
Claim), dated 13 May 2019
*	VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's 
Representative), dated 13 May 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 he was told that the type of discharge he received was 
temporary.  Item 25 (Education and Training Completed) of his DD Form 214 shows he 
was briefed on the benefits of an honorable discharge.

3.  The applicant enlisted in the Regular Army on 2 March 1972.

4.  The applicant accepted nonjudicial punishment (NJP) on 12 March 1973, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent 
without leave (AWOL) from on or about 18 February through on or about 2 March 1973.

5.  Before a special court-martial on or about 5 June 1973, at Fort Ord, California, the 
applicant was convicted of being AWOL from on or about 19 March through on or about 
27 April 1973.

6.  The applicant accepted NJP on 12 March 1973, under the provisions of Article 15 of 
the UCMJ, for being AWOL from on or about 3 July through on or about 14 July 1973.

7.  The facts and circumstances surrounding the applicant's discharge are not available 
for review.  However, his DD Form 214 shows he was discharged on 19 October 1973, 
under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial.  He 
completed 1 year, 3 months and 29 days of total active service and he had 111 days of 
lost time due to being in an AWOL status.  He was issued a DD Form 258A 
(Undesirable Discharge Certificate) and his service was characterized as UOTHC.

8.  Item 25 of the applicant's DD Form 214 contains the entry "BFTS OF HON DISCH," 
which means he was briefed on the benefits of receiving an honorable discharge.   
Item 30 (Remarks) of his DD Form 214 contains the entry "EM DISCH WITH TEMP 
FDRF," which means he was discharged with his temporary financial data record folder.

9.  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 
information that would indicate the contrary.  Further, it is presumed that the applicant’s 
discharge accurately reflects his overall record of service.  

10.  The applicant provides a VA Form 21-4138, which documents his request for an 
upgrade of his discharge because he was told that the type of discharge he received 
was temporary, and because of the entry shown in item 30 on his DD Form 214.  He 
states he was told if he took a Chapter 10, he would receive all of the benefits of an 
honorable discharge, which is also stated in item 25 of his DD Form 214.  However, 
there is no evidence in the available record and the applicant has not provided any 
evidence supporting his contention that he was told the type of discharge he received 
was temporary and/or he was promised the benefits of an honorable discharge.

11.  The Board should consider the applicant's provided evidence and 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 insufficient evidence of mitigating circumstances for the misconduct.  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.



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 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 states 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 10 states that a member who has committed an offense or offenses for 
which the authorized punishment includes a punitive discharge may submit a request for 
discharge for the good of the service in lieu of trial by court-martial.  The request may be 
submitted at any time after charges have been preferred and must include the individual's 
admission of guilt.  Although an honorable or general discharge is authorized, an 
undesirable discharge would normally be furnished to an individual who was discharged 
for the good of the service.

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)	 AR20190008012

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