ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


		BOARD DATE:  14 July 2020

	DOCKET NUMBER:  AR20190014304


APPLICANT REQUESTS:  an upgrade of his character of service from under other than 
honorable conditions (UOTHC) to honorable.

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)
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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, he served his country for 9 years honorably.  Over 30 years 
have passed; he is now in poor health, and in need of assistance from the Veterans 
Health Administration.  The applicant states he did not know he could contend for an 
honorable discharge at the time of his discharge 30 years ago.

3.  The applicant enlisted Regular Army on 27 May 1977, with prior military service in 
the U.S. Army Reserve, and served through a series of reenlistments.  The applicant 
was awarded military occupational specialties 64C (Motor Transport Operator) and 62E 
(Heavy Construction Equipment Operator).  

4.  The applicant's record contains a series of DA Forms 4187, which outline the 
applicant's duty status:

*	absent without leave (AWOL) from 15 August 1986 to 10 September 1986 
(returned on 11 September 1986)
*	AWOL from 15 September 1986 to 16 September 1986 (returned on 
17 September 1986)
5.  Court-martial charges were preferred against the applicant on 19 September 1986 
for violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge 
Sheet) lists the following charges: 

*	AWOL from on or about 15 August 1986 through on or about 11 September 1986
*	AWOL from on or about 15 September 1986 through on or about  
17 September 1986
*	failing to arrival on time to his appointed place of duty (work call formation) on or 
about 18 September 1986

6.  The applicant consulted with legal counsel, on 25 September 1986:

     a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of 
an UOTHC discharge, and the procedures and rights that were available to him.

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations 
– Enlisted Personnel), Chapter 10, for the good of the service.  In his request for 
discharge, he acknowledged his understanding that by requesting discharge, he was 
admitting guilt to the charge against him, or of a lesser included offense that also 
authorized the imposition of a bad conduct or dishonorable discharge.  He further 
acknowledged he understood that if his discharge request was approved he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.

	c.  He elected not to submit any statements in his own behalf.

7.  The applicant's immediate commander subsequently recommended approval of the 
applicant’s request that he be separated from the service and under the provisions of  
AR 635-200, paragraph 10, for the good of the service.  The commander stated the 
applicant’s duty performance was acceptable; however, not outstanding.   
The commander further stated that the applicant was not a “major trouble maker.”   
He further recommended an under honorable conditions (general) discharge. 

8.  The applicant’s intermediate commander recommended approval of the request and 
discharge with a characterization of under honorable conditions (general).

9.  The applicant’s brigade commander recommended approval of the request and 
discharge with a characterization of (UOTHC).

10.  The separation authority approved the applicant's request for discharge on  
7 October 1986, under the provisions of AR 635-200, Chapter 10, for the good of the 
service, and directed his reduction to the lowest enlisted grade and the issuance of a 
UOTHC discharge.

11.  Orders 255-1, dated 14 October 1986 reduced the applicant to the lowest enlisted 
grade and reassigned him to the U.S. Army Separation Transfer Point.

12.  The applicant was discharged on 22 October 1986, under the provisions of  
AR 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial.  
The DD Form 214 he was issued shows he was credited with 12 years and  
6 days of net active service, lost time from 15 August 1986 to 10 September 1986, and  
15 September 1986 to 16 September 1986, and his service was characterized as 
UOTHC.

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

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

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined that there is 
sufficient evidence to grant relief and upgrade the applicant’s discharge characterization 
from Under Other Than Honorable Conditions to General, Under Honorable Conditions.  
The Board applied Office of the Secretary of Defense standards of clemency to the 
complete evidentiary record, including the applicant’s statement and found evidence of 
an injustice in that there is sufficient evidence that the applicant served honorably 
from27 May 1977 until he went AWOL on 15 August 1986.  The Board found that the 
discharge characterization for the misconduct was too harsh for the circumstances.  
Therefore, the Board found that the discharge characterization was mitigated and 
should be upgraded to general under honorable conditions.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by amending the applicant’s 
DD Form 214 for the period ending “86-10-22” showing:
   
*	his characterization of service (item 24) as “General Under Honorable 
Conditions,” 
   
*	the separation authority (item 25) as “AR 635-200, para 5-3,”
   
*	a separation code (item 26) of “JFF.”
   
*	and the narrative reason (item 28) as “Secretarial authority,”


	  
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 635-200, effective 5 July 1984, sets policies, .standards, and 
procedures to insure the readiness and competency of the force while providing for the 
orderly administrative separation of enlisted members for a variety of reasons. 

	a.  This regulation states 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.   This regulation states 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.

	c.  Chapter 10, in effect at the time, provided that a member who committed an 
offense or offenses under the UCMJ, for which the authorized punishment included a 
punitive discharge, could submit a request for discharge for the good of the service at 
any time after court-martial charges were preferred.  Commanders would ensure that an 
individual was not coerced into submitting a request for discharge for the good of the 
service.  Consulting counsel would advise the member concerning the elements of the 
offense or offenses, the type of discharge normally given under the provisions of this 
chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of 
the characterization of such a discharge.  An under other than honorable conditions 
discharge would normally be furnished to an individual who was discharged for the good 
of the service.

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)	 AR20190014304

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