ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 July 2019

	DOCKET NUMBER:  AR20190008183


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 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)

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 has been working for the U.S Government for more than 
twenty years.  He only had one problem while he was in the military in the year 1985.   

3.  The applicant enlisted in the Regular Army on 28 August 1979. 

4.  Court-martial charges were preferred against the applicant on 17 December 1985 for 
violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge 
Sheet) shows he was charged with being absent without leave (AWOL) from on or 
about 19 September through on or about 10 December 1985.

5.  The applicant consulted with counsel on 17 December 1985.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an UOTHC discharge, and the procedures and rights that were available to him.  
	  
	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation 635-200 (Personnel Separations – 
Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-
martial.  In his request for discharge, he acknowledged his understanding that by 
requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense that also authorized the imposition of a bad conduct or dishonorable 
discharge.  He further acknowledged he understood that if his discharge request was 
approved he could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.  

	c.  He was advised he could submit any statements he desired in his own behalf.  
He elected not to make a statement in his own behalf.  

6.  Consistent with the recommendations of the chain of command, the separation 
authority approved the applicant's request for discharge on 31 December 1985, under 
the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, 
and directed that he be reduced to the lowest enlisted grade and be discharged 
UOTHC.

7.  The applicant was discharged on 4 February 1986, under the provisions of Army 
Regulation 635-200 (Personnel Separations), Chapter 10, by reason of administrative 
discharge – conduct triable by court martial.  His DD Form 214 (Certificate of Release or 
Discharge from Active Duty) confirms his service was characterized as UOTHC.

8.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, and 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, his record of 
service and period of previous honorable service, the nature and length of his absence 
and whether to apply clemency.  The Board found no evidence of post-service 
achievements or letters of reference provided by the applicant in support of clemency.  
Based on the applicant’s record of service, the nature of the offense and his personal 
statement, the Board found that the character of service he received was too harsh and 
clemency was warranted.  The Board concurs with the corrections stated in the 
Administrative Note(s) below.  

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



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

In addition to the corrections stated in the Administrative Note(s) below, the Board 
determined the evidence presented is sufficient to warrant a recommendation for 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 4 February 1986 to show in item 24 (Character of Service) – “General, 
under honorable conditions”.


  


	  
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):

A review of the applicant's record shows his DD Form 214, for the period ending  
4 February 1986, is missing important entries that affect his eligibility for post-service 
benefits.  As a result, amend the DD Form 214 by adding the following entries to  
item 18 (Remarks): 

*	SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE
*	IMMEDIATE REENLISMENTS THIS PERIOD:  790828 – 820301; 820302 – 
860204 
*	CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790828 UNTIL 
820301



REFERENCES:

1.  Title 10, U.S. Code, 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, in effect at the time, set 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 10 of that regulation provides, in pertinent part, 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, a UOTHC discharge is 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.

ABCMR Record of Proceedings (cont)	 AR20190008183

4

1