ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  .

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008199


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), dated 28 March 2019
*	DD Form 256A (Honorable Discharge Certificate), dated 26 May 1971

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 his father passed away and his mother was left to take care of 
his younger siblings.  His mother was unemployed; he left to support his siblings.  He 
was a young man and really didn’t understand the ramifications of his actions.  His 
family has suffered enough because of his poor decisions.  He also has an Honorable 
Discharge Certificate.

3.  The applicant was inducted into the Army of the United States on 21 May 1971 and 
was honorably discharged on 26 May 1971.  He enlisted in the Regular Army on 
27 May 1971.

4.  The applicant accepted non-judicial punishment on 16 July 1971, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent 
without leave (AWOL) from on or about 11 July through on or about 15 July 1971.

5.  Court-martial charges were preferred against the applicant on 13 February 1976, for 
violations of the UCMJ.  His DD Form 458 (Charge Sheet) shows he was charged with 
being AWOL from on or about 25 May 1972 through on or about 9 February 1976.

6.  The applicant consulted with legal counsel on or about 18 February 1976.

	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 under other than honorable conditions 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 VA, and he could be deprived of his rights and 
benefits as a veteran under both Federal and State laws.

	c.  He elected to submit a statement in his own behalf, wherein he stated he was the 
sole source of support for his family.  He went AWOL in October 1972 to go back home 
and help to provide for them.  He was married with an infant child.  He was employed by 
a civilian contractor operating a mess hall at Fort Sam Houston.  He asked that he 
receive a general discharge so that he could remain employed on the military 
installation.

7.  The separation authority approved the applicant's request for discharge on 4 March 
1976, under the provisions of Army Regulation 635-200, Chapter 10, and directed the 
applicant's reduction to the lowest enlisted grade and the issuance of a DD Form 258A 
(Undesirable Discharge Certificate).

8.  The applicant was discharged on 16 March 1976.  The DD Form 214 (Report of 
Separation from Active Duty) he was issued confirms his service was characterized as 
UOTHC.

9.  The applicant was charged due to the commission of an offense punishable under 
the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with 
counsel and requested discharge under the provisions of Army Regulation 635-200, 
Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial.

10.  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 insufficient evidence of mitigating circumstances for the misconduct.  Neither did 
the Board find sufficient evidence of post-service honorable conduct that might have 
mitigated the discharge characterization.  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 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 discharge under other than honorable 
conditions 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)	 AR20190008199

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