ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  16 September 2019

	DOCKET NUMBER:  AR20190009673


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), with personal statement
*	14 pages of service medical records
*	DA Form 2-1 (Personnel Qualification Record ? Part II)
*	Special Orders Number 43, issued by Headquarters, 9th Infantry Division and 
Fort Lewis, Fort Lewis, WA on 12 February 1976
*	DD Form 214 (Report of Separation from Active Duty), for the period ending  
12 February 1976

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 did not receive legal counsel as required by regulation and he did not sign a 
waiver of his right to an attorney.

   b.  His commander threatened him with being charged under the Uniform Code of 
Military Justice (UCMJ) with desertion during wartime, which is unjust coercion.
   
   c.  Article 85 of the UCMJ defines desertion as absenting oneself permanently with 
the intent to remain away.  That is not accurate in his case, he returned voluntarily.
   
   d.  His discharge is unjust as it is inconsistent with characterizations given to those 
afforded legal counsel and under current discharge standards.
3.  The applicant enlisted in the Regular Army on 25 June 1975.

4.  A DA Form 4187 (Personnel Action), dated 11 December 1975, shows the 
applicant's unit reported his as absent without leave (AWOL) from on or about  
13 November through on or about 4 December 1975; from on or about 5 December 
through on or about 10 December 1975; and on or about 11 December 1975.  He was 
dropped from the roles effective 11 December 1975.

5.  A DA Form 3836 (Notice of Return of US Army Member from Unauthorized 
Absence), dated 18 December 1975, shows the applicant surrendered to military 
authorities on or about 18 December 1975.
 
6.  Court-martial charges were preferred against the applicant for violations of the 
UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review in 
this case.

7.  A DA Form 4126?R (Bar to Enlistment/Reenlistment Certificate), dated 16 January 
1976, shows the applicant had been absent without leave on three occasions in a  
45 day period, thus accumulating 33 days of bad time.  His conduct and efficiency 
ratings were unsatisfactory and he was in the process of receiving a Chapter 10 
[administrative separation].  The applicant waived his right to submit a statement in his 
own behalf.

8.  The applicant's record of consultation with counsel and request for discharge under 
the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), Chapter 10, in lieu of trial by court-martial, is not available for review in this 
case.

9.  The applicant's unit commander's memorandum, dated 23 December 1975, 
recommended approval of the applicant's request for administrative separation under 
the provisions of Army Regulation 635-200, Chapter 10.  In his recommendation, he 
noted that the applicant had been counseled concerning his desire for a Chapter 10 
discharge; the applicant was pending a special court-martial for being AWOL; and the 
applicant's AWOL was due to many personal problems that had not been resolved.  The 
applicant felt he would not be able to cope with military life and remaining in the military 
would lead to him going AWOL again.
   
10.  The separation authority approved the applicant's request for discharge on 
3 February 1976, under the provisions of Army Regulation 635-200, Chapter 10, in lieu 
of trial by court-martial, and directed that the applicant receive a DD Form 258A 
(Undesirable Discharge Certificate).  

11.  The applicant was discharged on 12 February 1976, under the provisions of Army 
Regulation 635-200, Chapter 10, for the good of the service, and his service was 
characterized as UOTHC.  His DD Form 214 further shows the applicant had six months 
and 14 days of active service with 33 days of lost time.

12.  The issuance of a discharge under the provisions of Army Regulation 635-200, 
Chapter 10, required the applicant to have requested from the Army – voluntarily, 
willingly, and in writing – discharge in lieu of trial by court-martial.  It is presumed that all 
requirements of law and regulation were met and the rights of the applicant were fully 
protected throughout the separation process.  The applicant has provided no 
information that would indicate the contrary.  Further, it is presumed that the applicant’s 
discharge accurately reflects his overall record of service.  

13.  The applicant has not provided and the record does not contain any evidence that 
he was not afforded his right to counsel or was threatened with court-martial for 
desertion.

14.  The applicant's record documents no acts of valor, significant achievement, or 
service warranting special recognition. 

15.  The Board should consider the applicant's statement 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 record and length of service, 
the frequency and nature of his misconduct, his voluntary return, the absence of 
evidence to show that he was threatened, a Bar to Reenlistment and the reason for his 
separation.  The Board found insufficient evidence of in-service mitigating factors to 
overcome his 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, 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.  At the time of 
the applicant's discharge an undesirable discharge certificate was issued for a 
discharge under other than honorable conditions.

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)	 AR20190009673
	
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