BOARD DATE:  20 July 2020

DOCKET NUMBER:  AR20190015177


APPLICANT REQUESTS:  his under other than honorable conditions (UOTHC) 
discharge be upgraded to an honorable 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), dated 11 October 2019, with self-authored 
statement

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, in effect:

	a.  He feels he was discharged unjustly and prematurely, and he is seeking to get 
his discharge upgraded to an honorable discharge.  He had just gone through a 
traumatic situation in January 1977, when he lost his home due to a fire.  His mother 
was recently divorced and had to care for him and four younger siblings.  He decided to 
quit school and join the military to help his mom out financially.  He spent one year in 
Korea and returned to Fort Riley, KS and found out it was not a missile base, it was the 
"Big Red One" Infantry.  He spent the next year on his hand and knees scrubbing floors 
and urinals.  He felt his training in hawk missiles was wasted.  He slowly became put 
out by the situation and started to slack on his details and lost all interest together.
      
	b.  He wanted to be productive and even asked his first sergeant and captain if he 
could transfer to supply or something different.  He was told that his discharge papers 
were in progress and he was being kicked out of the military, three months before his 
Expiration Term of Service (ETS) date.  He felt that this was another kick in his teeth 
and he just wanted to help his family, not mess up his life for years to come.  His 
discharge has stopped him from achieving his potential.  He believes he has paid the 
price for being young and stupid.  He hopes the Board will consider his case and 
upgrade his discharge; he would be forever grateful.

3.  The applicant enlisted in the Regular Army on 9 March 1977. 

4.  The applicant accepted non-judicial punishment on 21 September 1977, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully 
have in his possession one (1) ounce, more or less, of marijuana.

5.  The applicant received two (2) letters of admonishment on 3 March 1978 and         
12 June 1978, for violating Eighth United States Army (EUSA) Regulation 60-1.  He was 
in violation for purchasing over the authorized amount of items per month. 

6.  The applicant accepted non-judicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ), on the following dates,

*	on 16 June 1978, for violating a lawful general regulation by exceeding the 
prescribed limitation of authorized purchases, on or about April 1978
*	on 26 February 1979, for failing to go at the time prescribed to his appointed 
place of duty, on or about 8 February 1979
*	on 7 June 1979, for failing to go at the time prescribed to his appointed place of 
duty, on or about 20 May 1979

7.  The applicant's record contains a DA Form 2496-1 (Disposition Form), Statement of 
Counseling.  The applicant was given a monthly counseling, during which the counselor 
noted that the applicant showed no qualities of a leader, did not care about improving 
himself, and his personal conduct was fair.  His pride and appearance was very poor, 
he was not physically fit for his military occupational specialty or grade during combat. 

8.  The applicant accepted non-judicial punishment on 10 August 1979, under the 
provisions of Article 15 of the UCMJ, for wrongfully having in his possession  
4.51 grams, more or less, of marijuana.

9.  The applicant underwent a mental status evaluation on 9 October 1979.  The 
relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal 
behavior, was fully alert and oriented, and had clear thought process and normal 
thought content.  The evaluating physician determine he had the mental capacity to 
understand and participate in any administrative proceedings and he was psychiatrically 
cleared for any administrative action deemed appropriate by his Command.

10.  The applicant underwent a separation medical examination on 20 December 1979.  
The results of this examination note no change in his medical condition.

11.  The applicant’s record is void of a separation packet containing the specific facts 
and circumstances surrounding his discharge processing.  However, his DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows he was discharged on  
20 December 1979, under the provisions of Army Regulation 635-200,  
paragraph 14-33b(1), by reason of misconduct – frequent incidents of a discreditable 
nature with civil or military authorities, and his service was characterized as UOTHC.

12.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade 
of his discharge and service characterization.  After careful review and consideration on 
25 April 1983, the ADRB found his discharge both proper and equitable and denied his 
petition for relief. 

13.  In reaching its determination, the Board should consider the applicant's request in 
accordance with the published equity, injustice, or clemency determination guidance 


BOARD DISCUSSION:

1.  The Board carefully considered the applicant's request, evidence in the records, and 
published Department of Defense 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 reason for his separation, and whether to 
apply clemency. 

2.  The Board found that while the applicant's chain of command was justified in 
separating him based on his pattern of minor misconduct, the characterization of his 
service was too harsh when considered in light of the Department of Defense guidance 
for consideration of discharge upgrade requests.  Based on a preponderance of 
evidence, the Board determined partial relief is warranted and the applicant's character 
of service should be upgraded to under honorable conditions (general).


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a 
recommendation for partial relief.  As a result, the Board recommends that all 
Department of the Army records of the individual concerned be corrected by reissuing 
his DD Form 214 to show his service was characterized as under honorable conditions 
(general).

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief.  As a result, the Board recommends denial of so much of 
the application that pertains to upgrading his character of service to honorable.

 

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.  
Paragraph 2-9 states the ABCMR begins its consideration of each case with the 
presumption of administrative regularity.  

3.  Army Regulation 635-200, in effect at the time, prescribed policies and procedures 
for enlisted administrative separations.  This regulation provided that:

	a.  An honorable discharge was a separation with honor; commanders issued an 
honorable discharge certificate based on the Soldier's proper military behavior and 
proficient duty performance.  Commanders were to give due consideration to the 
Soldier's age, length of service, and general aptitude.  Where there were infractions of 
discipline, commanders were to assess the extent of those infractions as well as the 
seriousness of the offenses.

	b.  A general discharge was a separation from the Army under honorable conditions, 
where the Soldier's military record was not sufficiently meritorious to warrant an 
honorable discharge.

	c.  Paragraph 14-33 (Other Misconduct).  Commanders identified Soldiers for 
discharge when they displayed a pattern of misconduct; this included Soldiers who were 
involved in frequent incidents of a discreditable nature with civil or military authorities.  A 
UOTHC character of service was normally issued for Soldiers discharged under this 
provision.

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 
(BCM/NRs), on 25 July 2018, regarding equity, injustice, or clemency determinations.

	a.  Clemency generally refers to relief specifically granted from a criminal sentence.  
BCM/NRs 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.

	b.  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.  

	c.  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)	 AR20190015177

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20190015177


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ABCMR Record of Proceedings (cont)	AR20190015177


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