ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 September 2019

	DOCKET NUMBER:  AR20190008853


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 149 (Application for Correction of Military Record Under the Provisions 
of Title 10, U.S. Code, Section 1552), dated 15 May 2019, with six page personal 
statement

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 was a good Soldier and if he had been properly counseled, he would have 
fought the charges.  
   
   b.  He lived off base because of the culture of drug abuse on base in Germany.  He 
tried his best to avoid the people who were doing drugs and this was part of the reason 
he stayed away too long.  
   
   c.  He had been asked to help square away a fellow Soldier who had the same last 
name, who was believed to be on drugs.  He believes he was putting his life in danger 
every time he tried to get the kid off drugs.
   
   d.  He lost his marriage because his wife was causing so many problems that he had 
to send her back to the States. 
   
   e.  At the time of his misconduct, he was also in an affair with twin sisters.  Due to 
that affair, he got caught up living out his fantasy of being with beautiful, blond, sexy, 
and very sexual twins.  

3.  The applicant enlisted in the Regular Army on 28 May 1976; his first duty station was 
in the Federal Republic of Germany.

4.  The applicant’s record is void of the facts and circumstances that led to his 
discharge.  However, his record contains: 

	a.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 November 
1978, which shows he underwent a mental status evaluation on 22 November 1978, 
and that evaluation revealed no abnormalities and cleared him for any administrative 
actions.

	b.  An endorsement from the Commander, 1st Support Command (Corps), dated 6 
March 1979, subject:  Request for Discharge for the Good of the Service [Applicant], 
, [Private First Class] PFC.  This endorsement shows the Commander, 
1st Support Command (Corps), as the separation authority, approved the applicant's 
request for discharge under the provisions of Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 10, for the good of the service.  He further 
directed that the applicant be reduced to the lowest enlisted grade and be issued a DD 
Form 794A (UOTHC Discharge Certificate). 

5.  The applicant was discharged on 15 March 1979, under the provisions of Army 
Regulation 635-200, Chapter 10, for the good of the service.  His DD Form 214 further 
shows he was discharged in the rank/grade of private/E-1 and his service was 
characterized as UOTHC.  

6.  The applicant appears to have been charged with 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 (Personnel Separations – Enlisted Personnel), Chapter 10.  Such 
discharges are voluntary requests for discharge in lieu of trial by court-martial.

7.  The Army Discharge Review Board denied the applicant's request for an upgrade on 
25 November 1981.  The decisional document provides the following related to the 
applicant's separation processing:

*	he was reported as absent without leave (AWOL) on the following three 
occasions:

*	from on or about 1 September through on or about 15 November 1978
*	from on or about 2 February through on or about 13 February 1979
*	from on or about 20 February through on or about 21 February 1979 (this 
period of AWOL resulted from his escape from lawful confinement)

*	he was advised of the court-martial charges on 5 March 1979
*	he consulted with counsel and requested a Chapter 10 discharge on 5 March 
1979
*	he did not submit a statement with his discharge request
*	he reported his periods of AWOL were due to family problems and being 
threatened by drug users 
*	a review of his records failed to show any indication of family or drug problems

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 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 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  It provides:

   a.  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.  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. A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

   c.  Chapter 10 provides 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 UOTHC is normally considered appropriate.

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)	 AR20190008853
	
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