ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008513


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded.

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 26 March 2019
*	DD Forms 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the periods ending 1 April 1959, 7 November 1960, and 
16 August 1963
*	letter from the Seneca County Veterans Service Commission, County Veterans 
Service Office, dated 26 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.  He served his country for three years before being unjustly discharged due to a 
vengeful executive officer.  He reenlisted twice and was an excellent Soldier.  He was 
often selected for special assignments and was given special duties requiring an eye for 
detail.  He was brought up on Article 15 charges for three moving violations in one 
weekend; he rebutted the Article 15 and won.  The executive officer verbally told him he 
was going to get him because the commanding officer was relieved of duty due to the 
applicant’s rebuttal.

   b.  He was given notice to remove his car from the base.  He was following orders 
and when he turned the corner the military police were waiting for him.  He was not 
supposed to drive his car on the base because he did not have base decals.  He was 
discharged with a UOTHC characterization for not having base decals.  This offense did 
not warrant this type of discharge.  He is 76 years old and has some health problems.  
He simply wants his burial flag for the time he served his country, at the time of his 
passing.

3.  The applicant enlisted in the Regular Army on 12 August 1958 and was honorably 
discharged on 1 April 1959 for the purpose of immediate reenlistment.  He reenlisted in 
the Regular Army on 2 April 1959 and was honorably discharged on 7 November 1960 
for the purpose of immediate reenlistment.  He again reenlisted in the Regular Army on 
8 November 1960.

4.  The applicant’s record contains a memorandum from the Chaplain, Special Troops, 
dated 11 January 1963, subject:  Recommendation for Hardship Discharge, wherein the 
chaplain stated the applicant was suffering from an acute form of financial insecurity 
due to circumstances beyond his control.  The chaplain recommended the applicant be 
released from active military service based on the applicant’s sincere desire to make 
good on his debts.

5.  The applicant accepted non-judicial punishment on or about 6 March 1963, under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for:

*	running a red light and not having an operator’s license
*	two previous violations of traffic regulations since 1 January 1963 (running a 
blinking red light and failure to signal before changing lanes)
*	delinquency on two different occasions to pay his telephone account, and failure 
to pay rent

6.  The applicant’s punishment included reduction to the rank/grade of private first 
class/E-3.  Subsequent to his rebuttal, the applicant’s punishment was set aside and all 
rights, privileges, and property affected restored, on 25 March 1963.

7.  The applicant’s record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing.  However, his DD Form 214 
shows he was discharged on 16 August 1963, under the provisions of Army Regulation 
635-208 (Personnel Separations – Discharge – Undesirable Habits and Traits of 
Character), and his service was characterized as UOTHC.

8.  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 that there is 
sufficient evidence to grant relief.  The Board agreed that there was evidence that an 
injustice had occurred.  Evidence indicated that the characterization of the applicant’s 
service was too harsh given his prior periods of honorable service and the nature of the 
misconduct that led to his discharge.  The Board agreed that the general (under 
honorable conditions) characterization more accurately describes his final period of 
service.  

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:

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 reissuing the applicant a 
DD Form 214 for the period ending 16 August 1963 showing his characterization of 
service as general, under honorable conditions and his rank/grade as PV2/E-2 with a 
date of rank of 12 December 1958.
	  
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 (Personnel Separations – Enlisted Personnel), governs 
the basic authority for the separation of enlisted personnel  

	a.  Paragraph 3-7a states 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 a general discharge is a separation from the Army under 
honorable conditions.  When authorized, it is issued to Soldiers whose military record is 
satisfactory but not sufficiently meritorious to warrant an honorable discharge.

3.  Army Regulation 635-208, in effect at the time, set forth the policy for administrative 
separation for unfitness.  Paragraph 3 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 a general or honorable discharge.

4.  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)	 AR20190008513

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