ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


BOARD DATE: 3 February 2020 
DOCKET NUMBER: AR20190013030

APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States), dated 2 August 2019
*	DD Form 4 (Enlistment Contract)
*	two DA Forms 2627-1 (Record of Proceedings under Article 15, UCMJ)
*	DA Form 2820 (Statement by Accused or Suspect Person)
*	Department of Justice, Federal Bureau of Investigation (FBI) report
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge), for the period ending 13 June 1973
*	DA Form 20 (Enlisted Qualification Record)
   *	eight third-party letters of support 
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 when he was discharged Army staff informed him that he would 
be eligible for an upgrade in six months. He had provided statements to assist in the 
investigation of criminal activity by other trainees and feels he did not receive a fair and 
equitable discharge. He believes his discharge was too hasty and without credit for his 
conduct.

3.	The applicant enlisted in the Regular Army on 13 October 1972.

4.	The applicant received nonjudicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates:


1



*	on 5 December 1972, for failure to go at the prescribed time to his appointed 
place of duty, on or about 1 December 1972
*	on 19 December 1972, for impeding an investigation by making a false sworn 
statement, on or about 8 December 1972
*	on 23 April 1973, for failure to go at the prescribed time to his appointed place of 
duty, on or about 21 April 1973

5.	The applicant was arrested by civilian authorities for possession of unlawful weapons 
(two charges) and theft of an automobile.  It was reported that he hid the fact that he 
was in the military from the civilian authorities.

6.	A civilian court found him guilty on the weapons charges on 10 January 1973. His 
sentence was a $158.00 fine or 60 days confinement. He was also held over for trial on 
the auto theft charge. The Army was notified of his apprehension, trial, and conviction 
on 21 January 1973. It was noted that the applicant was in confinement at that time. 
The applicant was returned to military control on 12 April 1973.

7.	An undated FBI report shows the applicant was arrested or charged on:

*	4 October 1971, for possession of stolen goods (Spring Valley, NY)
*	5 October 1971, for possession of stolen goods (New City, NY)
*	14 October 1971, for unauthorized use of a motor vehicle
*	14 April 1972, for unauthorized use of a motor vehicle
*	17 September 1972, for 3rd degree burglary
*	10 January 1973, for possession of unlawful weapons (a pistol and a knife) and 
larceny of an automobile

8.	The applicant's unit commander notified the applicant of his recommendation to 
discharge him under Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), paragraph 13-5(a), for frequent incidents of a discreditable nature with civil 
or military authorities.

9.	The applicant consulted with legal counsel on 25 April 1973.

   a.	He was advised of the basis for the contemplated discharge, the possible effects 
of an under honorable conditions discharge or an undesirable discharge, and the 
procedures and rights that were available to him.

   b.	Subsequent to receiving legal counsel, the applicant acknowledged the proposed 
discharge. He acknowledged he understood that if he was discharged with a general 
discharge he could be deprived some or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration, and that he could
   


expect to encounter substantial prejudice in civilian life if he received a general 
discharge or undesirable discharge.

   c.	He was advised he could request a hearing before a board of officers, which he 
elected to do. He was also advised that he could submit a statement in his own behalf; 
however, he declined that option.

10.	The applicant requested and was afforded a board of officers hearing on 29 May 
1973. The board recommended that he be eliminated from the military service and that 
he be issued a UD.

11.	The separation authority approved the applicant's discharge under the provisions of 
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
paragraph 13-5a(1), by reason of frequent incidents of a discreditable nature with civil or 
military authorities. He directed that the applicant be issued a DD Form 258A 
(Undesirable Discharge Certificate).

12.	The applicant was discharged on 13 June 1973. The DD Form 214 he was issued 
shows he was discharged under the provisions of Army Regulation 635-200,
Chapter 13, and his service was characterized as under conditions other than honorable 
conditions (UOTHC). His DD Form 214 further shows:

*	he was discharged in the rank/grade of private/E-1
*	he was credited with four months and 26 days of creditable active service
*	he had 95 days of lost time; 8 – 10 December 1972 and 18 January 1973 to 
11 April 1973
*	there were no noted personal awards or decorations
*	a notation that he was discharged while in civil confinement

13.	There is no evidence that the applicant completed advanced individual training or 
was awarded a military occupational specialty or that he rendered assistance in the 
investigation of criminal activities of fellow Soldiers.

14.	The letters of support describe the applicant as a valued employee and a good 
friend. He is dependable, responsible, honest, and courteous.

15.	The Board should consider the applicant's statement and letters of support 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 request.  The Board considered the applicant’s statement, his record of 
service, the frequency and nature of his misconduct, civil charges and a civil conviction, 
a board of officer’s review and the reason for his separation. The Board found 
insufficient evidence of in-service mitigating factors for the serious misconduct. The 
Board considered the letters of reference, but found no additional evidence of post- 
service achievements. The Board determined the documentation provided by the 
applicant was insufficient to support a clemency determination. Based on a 
preponderance of evidence, the Board determined 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.





  X	

CHAIRPERSON


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 provided:

   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 13 provided that a Soldier may be separated per this chapter when it is 
determined that he/she is unqualified for further military service because of 
unsatisfactory performance. Commanders will initiate separation action only when the 
Soldier is under military control. As an exception, commanders may initiate this action 
when a Soldier is confined by civil authorities and his/her military record indicates that 
he/she should be processed for separation by reason of unsatisfactory performance.

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.

//NOTHING FOLLOWS//