ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  .

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008497


APPLICANT REQUESTS:  In effect, 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 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States), dated 3 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, in effect, he requests his discharge be upgraded so he can 
qualify for Department of Veterans Affairs (VA) benefits.

3.  The applicant enlisted in the Regular Army on 19 October 1973.  He completed his 
initial entry training and was awarded military occupational specialty 11B (Infantryman).

4.  The applicant received nonjudicial punishment (NJP), under the provisions of  
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the 
indicated offenses:

*	on 14 November 1974, for failing to go at the time prescribed to his appointed 
place of duty, on or about 5 November 1974, at Camp Hovey, Korea
*	on 23 September 1975, for absenting himself from his unit from on or about 0730 
hours, 15 September 1975, through on or about 0900 hours,15 September 1975, 
at Fort Ord, CA

5.  The applicant received NJP on 30 October 1975, under the provisions of Article 15 of 
the UCMJ, for three specifications of failing to go at the time prescribed to his appointed 
place of duty:  on or about 0700 hours, 24 October 1975; on or about 0700 hours,  
25 October 1975; and on or about 0700 hours, 29 October 1975, at Fort Ord, CA.  He 
appealed the punishment on 14 November 1975; however, his appeal was denied on  
6 January 1976.

6.  The applicant underwent a mental status evaluation on 10 November 1975.  The 
relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he received the 
mental status evaluation for unfitness.  The report further shows he had no significant 
mental illness; was mentally responsible; could distinguish right from wrong; was able to 
adhere to right and wrong; and had the mental capacity to understand and participate in 
board proceedings.  He also met the retention standards prescribed in Army  
Regulation 40-501 (Standards of Medical Fitness).

7.  The applicant again accepted NJP on 6 January 1976, under the provisions of  
Article 15 of the UCMJ, for absenting himself from his unit from on or about 0700 hours, 
1 December 1975 through on or about 1345 hours, 3 December 1975, at Fort Ord, CA.

8.  The applicant was notified by his immediate commander on 8 January 1976 that he 
was initiating actions to separate him from service under the provisions of Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a (1), 
for unfitness due to his frequent incidents of a discreditable nature.  The applicant 
acknowledged the proposed separation notification and was advised of his rights:

*	to present his case before a board of officers
*	to submit statements in his own behalf
*	to be represented by counsel
*	to waive the above rights in writing
*	to withdraw his waiver of his rights, any time prior to the date the discharge 
authority directed or approved his discharge or request his case be presented 
before a board of officers

9.  The applicant's commander formally recommended, on 9 January 1976, the 
applicant's appearance before a board of officers to determine if he should be separated 
prior to the expiration of his term of service, under the provisions of Army Regulation 
635-200, paragraph 13-5a (1), for unfitness due to his frequent incidents of a 
discreditable nature with civil or military authorities.  He noted in his recommendation:

[The applicant] was a constant accountability problem for his superiors.  He had 
been counseled, received intracompany transfers to other elements within this unit, 
and had been punished under the provisions of Article15 for being absent without 
leave (AWOL).  These remedies have met with no success.  The applicant displayed 
disregard towards military authority and was totally unconcerned as to the 
consequences of further absences.  His continued presence was a disruptive 
influence on the morale and discipline, of other Soldiers in this unit.
10.  The applicant consulted with counsel on 15 January 1976 and signed an  
Ord Form 493 (Statement of Counseling) showing he was advised of the basis for the 
contemplated action to separate him under the provisions of Army Regulation 635-200, 
Chapter 13.  He was advised he could expect to encounter substantial prejudice if a 
general discharge (under honorable conditions) was issued, and was further advised 
that as the result of issuance of a discharge under conditions other than honorable 
(UOTHC), he could be ineligible for many or all benefits as a veteran under Federal and 
State laws and that he may expect to encounter substantial prejudice in civilian life.  He 
made the following elections of his rights:  

*	be represented by counsel [waived further representation]
*	submit statements in his own behalf [he did not make any statements]
*	to have his case heard by a board of officers
*	obtain documents to be presented to the separation authority
*	waive any of these rights [he elected to waive all rights]
*	withdraw any waiver of rights at any time prior to the date the discharge authority 
directs or approves his discharge

11.  The applicant's intermediate commander recommended approval of his separation, 
on 20 January 1976, and requested a waiver of further counseling and rehabilitation. 

12.  Consistent with the chain of command recommendations, the separation authority 
approved the applicant's discharge, under the provisions of Army Regulation 635-200, 
paragraph 13-5a (1), by reason of unfitness.  He directed the applicant's reduction to the 
lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge 
Certificate).

13.  The applicant was discharged on 10 February 1976.  His DD Form 214 shows he 
was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a (1).  
His DD Form 214 confirms he was issued an Undesirable Discharge Certificate and his 
service was characterized as UOTHC.

14.  The Board should consider the applicant's request 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's ongoing pattern of misconduct was well 
documented, and the Board agreed that there was 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 administrative 
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 an under honorable conditions (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 13, in effect at the time, contained the policy and outlined the procedures 
for separating individuals for unfitness.  It provided that individuals would be discharged 
by reason of unfitness when their records were characterized by one or more of the 
following:  (a) frequent incidents of a discreditable nature with civil or military authorities, 
(b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or 
(e) an established pattern showing dishonorable failure to pay just debts.  This 
regulation prescribed that an undesirable discharge was normally issued unless the 
particular circumstances warranted an honorable or a general discharge.

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)	AR20190008497

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