BOARD DATE:  2 March 2020

DOCKET NUMBER:  AR20190014395


APPLICANT REQUESTS:  The applicant requests, in effect, to change his chapter 10 in 
lieu of trial by court-martial discharge to a hardship discharge.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Report of Separation from Active Duty) 

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 would like to have his discharge upgraded to a hardship 
discharge.    

3.  On 9 August 1974, the applicant was inducted into the Army of the United States.    

4.  On 24 April 1974, he received non-judicial punishment (NJP) under the provisions of 
Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) 
from on or about 27 January to 17 April 1974.  He appealed the NJP and his appeal 
was denied.  

5.  His military record contains documents that show he went AWOL again from on or 
about 24 April at 1700 hours to 16 July 1974.  

6.  On 23 July 1974, the applicant was medically cleared for administrative separation 
actions deemed necessary by his chain of command.

7.  On 24 July 1974, court-martial charges were preferred against the applicant for 
being AWOL from on or about 24 April to 16 July 1974.

8.  On 25 July 1974, the applicant voluntarily requested to be discharged for the good of 
the service in-lieu of trial by court-martial under the provisions of chapter 10, Army 
Regulation 635-200 (Personnel Separations – Enlisted Personnel).      

     a.  He consulted with legal counsel and was advised of the basis for his 
contemplated trial by court-martial, its effects, and of the procedures and rights 
available to him.  

	b.  The applicant elected to submit a statement in his own behalf, and stated in 
pertinent part, he was drafted in July 1972.  He was married and had a child that was 8 
months old.  He feels he should not have been drafted because there was no war or 
anything going on at that time.  He had to sell just about everything he and his wife had 
because he was drafted.  He completed training requirements and was eventually 
assigned to Fort Campbell, KY.  This is where his wife started cheating on him.  He was 
always on guard duty, in charge of quarters, and performing other duties.  He 
complained to his first sergeant and was told to suck it up and drive on.  He just got fed 
up with Army and wanted out of it.      

	c.  His chain of command recommended approval of his request to be discharged, 
and recommended he be issued an Under Other Than Honorable Conditions (UOTHC) 
Discharge Certificate.

	d.  The separation authority approved the applicant’s request for discharge for the 
good of the service in lieu of trial by court-martial and directed he be furnished an  
UOTHC Discharge Certificate.     

9.  On 9 August 1974, the applicant was discharged accordingly.  His DD Form 214 
shows he was given an UOTHC character of service.  He completed 1 year, 7 months, 
and 10 days of net active service.  He had 163 days of lost time and was not awarded a 
personal decoration.  

10.  The applicant requests to have his discharge “upgraded” to a hardship discharge; 
nevertheless, the evidence of record shows court-martial charges were preferred 
against him and after consulting with legal counsel, he voluntarily requested to be 
discharged for the good of the service in lieu of trial by court-martial.  

11.  Army Regulation 635-200, chapter 10 stated that, a member who was charged with 
an offense or offenses for which the authorized punishment included a punitive 
discharge could submit a request for discharge in lieu of trial by court-martial.  The 
request could be submitted at any time after charges had been preferred and must have 
included the individual's admission of guilt.  Although an honorable or general discharge 
was authorized, a discharge under other than honorable conditions was normally issued 
to an individual who was discharged for the good of the service. 
12.  Army Regulation 635-200, chapter 6 (Separation because of Dependency or 
Hardship) stated, in pertinent part, a member may be discharged or released, as 
appropriate, because of dependency or hardship when it is considered that undue and 
genuine dependency or hardship exists.  Hardship exists when in circumstances not 
involving death or disability of a member of the enlisted person's family, his separation 
from the Service will materially affect the care or support of his family by alleviating 
undue and genuine hardship.    

13.  In reaching its determination, the Board should consider the applicant's petition, 
service record, and statements 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, the charges against him, his 
request for discharge and the reason for his separation.  The Board found insufficient 
evidence of in-service mitigation or hardship to overcome the multiple instances of 
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.











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 (Personnel Separations – Enlisted Personnel) set forth the 
basic authority for the administrative separation of enlisted personnel.

     a.  Chapter 10 stated a member who was charged with an offense or offenses for 
which the authorized punishment included a punitive discharge could submit a request 
for discharge for the good of the service in lieu of trial by court-martial.  The request 
could be submitted at any time after charges had been preferred and must have 
included the individual's admission of guilt.  Although an honorable or general discharge 
was authorized, a discharge under other than honorable conditions was normally issued 
to an individual who was discharged for the good of the service.

     b.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization was appropriate when the 
quality of the member’s service generally had met the standards of acceptable conduct 
and performance of duty for Army personnel or was otherwise so meritorious that any 
other characterization would have been clearly inappropriate.

     c.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.

     d.  An under other than honorable conditions discharge is an administrative 
separation from the service under conditions other than honorable.  It may be issued for 
misconduct.  In a case in which an UOTHC is authorized by regulation, a member may 
be awarded an honorable or general discharge, if during the current enlistment period of 
obligated service he has been awarded a personal decoration or if warranted by the 
particular circumstances of a specific case. 

3.  Army Regulation 635-200, chapter 6 (Separation because of Dependency or 
Hardship) stated, in pertinent part, a member may be discharged or released, as 
appropriate, because of dependency or hardship when it is considered that undue and 
genuine dependency or hardship exists.  Hardship exists when in circumstances not 
involving death or disability of a member of the enlisted person's family, his separation 
from the Service will materially affect the care or support of his family by alleviating 
undue and genuine hardship.    

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (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.  

     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, 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.  

     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)	 AR20190014395


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190014395


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ABCMR Record of Proceedings (cont)	AR20190014395


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