BOARD DATE:  22 October 2019

DOCKET NUMBER:  AR20190009525


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to an honorable 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 28 May 2019
*	Spouse's Sworn Affidavit

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 due to administrative errors and bad advice from counsel, he 
was discharged UOTHC.  His record reflects a court-martial offense and no evidence 
was found for his wrongful actions.  The U.S. Army Criminal Investigation Command  
dropped the charges due to lack of evidence.  In the statement provided by his wife, she 
takes full responsibility for her actions.

3.  With prior enlisted service in the Regular Army, the applicant was appointed as a 
Reserve commissioned officer of the Army on 27 July 1981, in the rank of second 
lieutenant.  

4.  The applicant was promoted to first lieutenant on 27 January 1983 to captain on  
1 February 1985.

5.  The facts and circumstances pertaining to the applicant's discharge are not 
available.  However, an Army Council Review Board Case Report and Directive (drafted 
for his Army Discharge Review Board (ADRB) case) shows:

	a.  The applicant was charged on 2 October 1985 for the following offenses:

*	intent to defraud for procurement of lawful currency and things of value
*	wrongfully and unlawfully making, drawing, and uttering worthless checks in 
the total amount of approximately $18,000.00, from 1 January 1985 to 23 
August 1985
*	wrongfully and dishonorably mismanage his joint checking account as his wife 
wrote worthless checks in the amount of approximately $18,000.00, from 
1 January 1985 to 22 August 1985
*	conduct unbecoming an officer
*	wrongfully and dishonorably mismanaged his personal and family financial 
affairs by allowing his wife to overdraw their checking account repeatedly to a 
cumulative total overdraft of approximately $18,000.00, from 1 January 1985 
through 22 August 1982

	b.  The applicant voluntarily tendered his resignation from the Army under the 
provisions of Army Regulation 635-120 (Officer Resignations and Discharges), for the 
good of the service, in lieu of trial by court-martial.

	c.  The U.S. Army Ad Hoc Review Board recommended that the applicant's 
resignation be accepted with the issuance of a UOTHC discharge.

	d.  The Deputy Assistant Secretary of the Army (Review Boards), Personnel Security 
and Equal Employment Opportunity Compliance and Complaints Review, approved the 
recommendation of the Army Ad Hoc Review Board on 14 March 1986.  

6.  The applicant was discharged on 23 July 1986, under the provisions of Army 
Regulation 635-120, for the good of the service.  His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of Army Regulation 635-120, for the good of the service, in lieu of trial by 
court-martial, and his service was characterized as UOTHC.

7.  The applicant was charged due to the commission of offenses punishable under the 
Uniform Code of Military Justice with a punitive discharge.  Subsequent to being 
charged, he consulted with counsel and tendered his resignation.  Such discharges are 
voluntary requests for discharge for the good of the service.

8.  The ADRB considered the applicant's prior request for a discharge upgrade on or 
about 19 July 1991.  The ADRB determined his discharge was both proper and 
equitable and denied his request for relief.

9.  The applicant provides a sworn affidavit from his spouse in which she takes full 
responsibility for the misuse their checking account.


10.  The Board should consider the applicant's statement and provided evidence in 
accordance with the published equity, injustice, or clemency determination guidance.

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, the absence of a separation 
packet, his request to resign in lieu of elimination and the reason for and character of 
his separation.  The Board considered a sworn affidavit from his spouse taking 
responsibility for misuse of their checking account.  After considering the above, the 
Board found insufficient evidence of in-service mitigation to overcome the misconduct 
and the applicant provided no evidence of post-service achievements or letters of 
reference 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

: 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, U.S. Code, 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 635-120, then in effect, implemented the statutory provisions of 
Title 10, U.S. Code, governing active duty officer resignations and discharges.   
Chapter 5 of this regulation provided that an officer could submit a resignation for the good 
of the service when court-martial charges were preferred against the officer with a view 
toward trial by general court-martial, the officer was under suspended sentence of 
dismissal, or the officer elected to tender a resignation because of reasons outlined in 
Army Regulation 635-100 (Personnel Separations – Officer Personnel),  
paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges 
being preferred and prior to being recommended for elimination under the provisions of 
Army Regulation 635-100.  The regulation provided that a resignation for the good of the 
service, when approved at Headquarters, Department of the Army, was normally accepted 
as being under other than honorable conditions.

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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20190009525

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190009525

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ABCMR Record of Proceedings (cont)	AR20190009525


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