ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF: 

	BOARD DATE:  5 September 2019

	DOCKET NUMBER:  AR20190009642


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)

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 was told he could have his discharge upgraded after             
6 months.  He and his dad had a difference of opinion because his dad was a retired 
master sergeant with 29 years of service.  His dad was disappointed in him.  He was     
17 years old at the time and is now 60 years old and wants his discharge to be 
upgraded.

3.  On 20 October 1978, the applicant accepted non-judicial punishment for failing to go 
at the prescribed time to his appointed place of duty.  

4.  On 3 August 1979, the applicant was charged with being absent without authority 
from on or about 16 February 1979 to on or about 12 July 1979.

5.  On 3 August 1979, after consulting with counsel, the applicant he requested 
discharge for the good of the service under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), chapter 10.  He was advised of the basis 
for the contemplated separation action, the possible effects of a discharge, and the 
rights available to him.  He admitted he was guilty of the charges against him.  He 
further acknowledged, as a the result of issuance of an undesirable discharge under 
conditions other than honorable, he may be ineligible for many or all benefits as a 
veteran under both Federal and State laws and he may expect to encounter substantial 
prejudice in civilian life.  He elected not to make statements in his own behalf.

6.  On 27 August 1979, the appropriate authority approved the applicant’s request and 
directed an UOTHC Discharge Certificate. 

7.  On 3 September 1979, the applicant was discharged in accordance with the 
appropriate authority’s decision. 

8.  There is no indication the applicant applied to the Army Discharge Review Board for 
an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  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 at any 
time after the charges have been preferred.  A UOTHC discharge is normally 
considered appropriate.

10.  On 3 September 2014 the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) 
criteria, detailed medical considerations and mitigating factors when taking action on 
applications from former service members administratively discharged UOTHC and who 
have been diagnosed with PTSD by a competent mental health professional 
representing a civilian healthcare provider in order to determine if it would be 
appropriate to upgrade the characterization of the applicant's service.

11.  In reaching its determination, the Board can consider the applicant's petition, his 
statement and service documents, 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 no in-service mitigating factors for his misconduct and the applicant 
provide 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 at 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, 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 sets forth the basic authority for the separation of enlisted 
personnel.

     a.  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 at any 
time after the charges have been preferred.  An UOTHC discharge is normally 
considered appropriate.

     b.  Paragraph 3-7a states that an honorable discharge is given when the quality of 
the Soldier’s service has generally met standards of acceptable conduct and duty 
performance.

     c.  Paragraph 3-7b states that 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.

3.  On 3 September 2014 the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised post-traumatic stress disorder (PTSD) 
criteria, detailed medical considerations and mitigating factors when taking action on 
applications from former service members administratively discharged UOTHC and who 
have been diagnosed with PTSD by a competent mental health professional 
representing a civilian healthcare provider in order to determine if it would be 
appropriate to upgrade the characterization of the applicant's service.

4.  On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole or in part to:  mental health conditions, including PTSD; 
traumatic brain injury (TBI); sexual assault; or sexual harassment.  Boards are to give 
liberal consideration to Veterans petitioning for discharge relief when the application for 
relief is based in whole or in part on those conditions or experiences.  The guidance 
further describes evidence sources and criteria and requires Boards to consider the 
conditions or experiences presented in evidence as potential mitigation for misconduct 
that led to the discharge. 

5.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and 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.  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.  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)	 AR20190009642
	
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