BOARD DATE:  8 November 2019

DOCKET NUMBER:  AR20190008569


APPLICANT REQUESTS:  the applicant requests that his Under Other Than Honorable 
Conditions (UOTHC) discharge be upgraded to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214  (Certification Release of Discharge)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records 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 requests and upgrade to his discharge because he needs Veteran 
benefits and he was told that his UOTHC discharge was temporary and it would be 
changed to honorable after 6 months of leaving the service.

3.  On 23 October 1981, at the age of 19, enlisted into the Regular Army after 45 days 
in the Delayed Entry Program (DEP) for a period of 3 years.  On 31 August 1983, he 
extended his current contract for 32 months to meet overseas time required for the 
movement of his dependent. 

4.  He completed both Basic and Advanced Individual Training and was awarded the 
military occupational specialty (MOS) 13E (Cannon Fire Direct Specialist).  The highest 
rank he attained was Private First Class (PFC) on 10 September 1982.  

5.  A review of his records shows that he received two Article 15s for being absent 
without leave (AWOL):

*	27 September 83 to on or about 6 October 1983; punishment of reduction to 
Private E2, forfeiture of $100.00 per month for 2 months and correctional custody for 10 
days
*	29 November 1983 until on or about 1 December 1983; punishment of reduction 
to Private E1, forfeiture of $200.00 per month for 1 month and extra duty for 30 days

6.  On an undated DA Form 4126-R (Bar to Reenlistment Certificate), the applicant’s 
immediate commander initiated a Bar to Reenlistment against the applicant stating that 
his performance over the last year has slowly gone down and his attitude was extremely 
poor.  He further stated that the applicant had been counselled numerous times but has 
shown no signs of improvements.

*	AR 601-280, Chapter 6 Army Reenlistment Program prescribes procedures to deny 
reenlistment to soldiers whose immediate separation under administrative procedures is 
not warranted, but whose reentry into, or service beyond ETS with, the Active Army is not 
in the best interest of the military service. 

*	Policies and procedures prescribed herein apply to the field commander's bars to 
reenlistment Soldiers may not be reenlisted without the recommendation of the unit 
commander.

7.  On 20 December 1983, the immediate commander counseled the applicant and 
informed him that he was being recommended for discharge under the provisions of 
Army Regulation 635-200, chapter 14.  The applicant's discharge packet is not filed 
in the official military personnel file (OMPF).  Due to the lack of evidence we are unable 
to determine the specific circumstance(s) that led to his discharge; however, his records 
provide a DD Form 214 that shows on 26 January 1984, he was discharged according 
to AR 635-200, chapter 14-12a for misconduct-minor disciplinary infractions.  He 
completed 2 years, 1 month, and 23 days of his 3 year contractual obligation with 
approximately 10 days of lost time and authorized or awarded the Army Service Ribbon. 

8.  The applicant states he was lead to believe that his discharge would be upgraded 
after 6 months of separation from the Army; however, the U.S. Army does not have, nor 
has it ever had, a policy to automatically upgrade discharges.  Each case is decided on 
its own merits when an applicant submits an application to either the Army Discharge 
Review Board or the ABCMR requesting change in discharge.  Changes may be 
warranted if the ABCMR determines that the characterization of service or the reason 
for discharge or both were improper or inequitable.  The Defense Discharge Review 
Standards specifically state that no factors should be established that require automatic 
change or denial of a change in discharge

9.  The applicant requests an upgrade in order to receive medical benefits.  The 
ABCMR does not grant requests for upgrade of discharges solely for the purpose of 
making the applicant eligible for veterans' benefits; however, in reaching its 
determination, the Board should consider the applicant's petition, his service record, and 
his statement in light of the published Department of Defense guidance on equity, 
injustice, or clemency.
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 found insufficient 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 
found evidence of the applicant’s continued misconduct pursuant to the chain of 
command’s rehabilitation attempts noted in numerous counseling statements.  The 
Board found limited evidence of remorse or post-service honorable conduct that might 
have mitigated the discharge characterization.  Therefore, 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.


ADMINISTRATIVE NOTE(S):  Not Applicable

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 Army Board for Correction of Military Records 
(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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set forth the basic authority for the administrative separation of 
enlisted personnel.  Chapter 14 of the regulation dealt with separation for various types 
of misconduct.  The issuance of a discharge under other than honorable conditions 
(UOTHC) was normally considered appropriate for separations under the provisions of 
chapter 14.  In a case in which an UOTHC is authorized by regulation, a member may 
be awarded an honorable or general discharge, if during the current enlistment period 
of obligated service he has been awarded a personal decoration or if warranted by the 
particular circumstances of a specific case.

   a.  Paragraph 14-12a provided for the separation of a Soldier due to a pattern of 
misconduct consisting solely of minor military disciplinary infractions.  
   
   b.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel, or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.  
   
   c.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.
   
     d.  An UOTHC is an administrative separation from the service under conditions 
other than honorable.  It may be issued for misconduct.  In a case in which an UOTHC 
is authorized by regulation, a member may be awarded an honorable or general 
discharge, if during the current enlistment period of obligated service he has been 
awarded a personal decoration or if warranted by the particular circumstances of a 
specific case. 
   
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency 
determinations.  Clemency generally refers to relief specifically granted from a criminal 
sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to other corrections, including changes in a discharge, which may 
be warranted based on equity or relief from injustice.  

     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, BCM/NRs 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.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20190008569


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ABCMR Record of Proceedings (cont)	AR20190008569


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