IN THE CASE OF:  

BOARD DATE:  19 September 2019

DOCKET NUMBER:  AR20190009225


APPLICANT REQUESTS:  The applicant requests an upgrade of his under other than 
honorable conditions (UOTHC) discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Congressional Inquiry

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 states he served honorably for almost 4 years.  He was young and 
made a bad decision.    

3.  On 24 July 1991, he enlisted in the Regular Army for a period of 5 years.      

4.  His record contains a general counseling that indicates he was absent from his place 
of duty from 16 June to 17 June 1994.  His record also shows:

	a.  He was charged with three (3) specifications of wrongfully using cocaine, and 
wrongfully and unlawfully writing multiple worthless checks to the Army and Air Force 
Exchange Service.    

	b.  He consulted with legal counsel, and voluntarily requested to be discharged 
under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), 
in lieu of trial by court-martial. 

	c.  His chain of command recommended approval of his administrative separation 
request.  

	d.  On 1 November 1994, the separation authority approved the applicant’s 
separation request and directed his service be characterized as under other than 
honorable conditions.     

5.  On 15 November 1994, the applicant was discharged accordingly.  He completed 3 
years, 3 months, and 22 days of net active service.  He was awarded or authorized the 
Army Achievement Medal and the Army Good Conduct Medal.  

6.  On 10 April 1997, the Army Discharge Review Board denied the applicant’s request 
for an upgrade of his discharge and determined he was properly and equitably 
discharge.    The record contains no indication of procedural or other errors that would 
tend to have jeopardized the applicant’s rights

7.  Army Regulation 635-200 states that, a member who was charged with an offense or 
offenses for which the authorized punishment included a punitive discharge could 
submit a request in lieu of trial by court-martial.  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.   

9.  In reaching its determination, the Board should consider the applicant's petition, his 
service record, and his statements in light of the published Department of Defense 
guidance on equity, injustice, or clemency.  

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct and the reason for his separation.  
The Board found insufficient evidence of in-service mitigation to overcome his 
misconduct and the applicant provided no evidence of post-service achievements in 
support of a clemency determination.  Based on a preponderance of evidence, the 
Board determined that the character of service the applicant received upon separation 
was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.



BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:XXX	:XXX	:XXX	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 635-200 (Personnel Separations – Enlisted Personnel) set forth the 
basic authority for the administrative separation of enlisted personnel.

     a.  Chapter 10 stated a member who was charged with an offense or offenses for 
which the authorized punishment included a punitive discharge could submit a request 
for discharge in lieu of trial by court-martial.  The request could be submitted at any time 
after charges had been preferred and must have included the individual's admission of 
guilt.  Although an honorable or general discharge was authorized, a discharge under 
other than honorable conditions was normally issued to an individual who was 
discharged for the good of the service.

     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 under other than honorable conditions discharge 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.
ABCMR Record of Proceedings (cont)	 AR20190009225
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190009225
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ABCMR Record of Proceedings (cont)	AR20190009225


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