IN THE CASE OF:  

BOARD DATE:  21 May 2021

DOCKET NUMBER:  AR20200001171


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to either an under honorable conditions (general) discharge or 
an honorable discharge, and correction of his DD Form 214 (Certificate of Release or 
Discharge from Active Duty) to show his separation code as "JFF" instead of "JKA" and 
his narrative reason for separation as "Secretarial Authority" instead of "Misconduct – 
frequent incidents of a discreditable nature with authorities." 

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 15 November 2019
*	Counsel's Letter to the Army Board for Correction of Military Records (ABCMR), 
dated 15 November 2019, with Memorandum in Support of Application for 
Correction of Military Records and List of Exhibits 

*	Exhibit A – Collection of Statutes and Regulations
*	Exhibit B – Department of Defense (DoD) Announces New Outreach Efforts 
to Veterans Regarding Discharge and Military Records, Press Release No: 
NR-459-16 (30 December 2016)
*	Exhibit C – Memorandum from R.L. Wilkie to Secretaries of the Military 
Departments (Guidance to Military Discharge Review Boards and Boards for 
Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency 
Determinations) [Wilkie Memorandum] (25 July 2018)
*	Exhibit D – Declaration of the Applicant
*	Exhibit E – Excerpts from the Applicant's Military Record
*	Exhibit F – U.S. News & World Report, "Are Drugs Crippling Our Armed 
Forces?" (Aug. 14, 1978)
*	Exhibit G – R.A. Zaldivar, "D.C.'s Turning into Drug City, A Nighttime Street 
Sellers' Haven," The Miami Herald (18 February 1985)
*	Exhibit H – R.A. Zaldivar, "Deadly Drug War is Turning Washington into Battle 
Zone," The Miami Herald (20 March 1988)
*	Exhibit I – Excerpts of Department of Defense Instruction Number 1332.28 
(Discharge Review Board (DRB) Procedures and Standards) (4 April 2004)
*	Exhibit J – Character Reference (10 October 2019)
*	Exhibit K – Character Reference (25 September 2019)
*	Exhibit L – Character Reference (4 November 2019)
*	Exhibit M – Character Reference (29 September 2019)

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 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.  His discharge was unjust when assessed according to the principles and factors 
outlined in sections 6 and 7 of the Wilkie Memorandum.  While it is within the "sound 
discretion" of the ABCMR to determine the "relative weight" of each principle and factor 
on a case-by-case basis, many, if not most, of the principles and factors of the Wilkie 
Memorandum overwhelmingly favor relief.  His post-discharge conduct, including 
rehabilitation and atonement for past misconduct, supports an upgrade.  While he 
accepts responsibility for his past actions that occurred over 40 years ago, such minor, 
infrequent, and nonviolent actions do not preclude relief.

	b.  It is for the stated reasons, supported by the facts and arguments contained in 
the memorandum prepared with the assistance of counsel, that he requests the ABCMR 
upgrade his discharge and replace his existing separation code and narrative reason for 
separation.

3.  The applicant enlisted in the Regular Army on 1 November 1977.  

4.  The applicant accepted nonjudicial punishment (NJP) on 6 September 1978, under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to 
go at the time prescribed to his appointed place of duty, on or about 27 July 1978 and 
on or about 1 August 1978.  His punishment included 21 days of extra duty and a 
forfeiture of $50.00 pay per month for two months (suspended for 60 days).

5.  The applicant's duty status was changed from present for duty (PDY) to confined by 
civil authorities (CCA) on 29 September 1978, after the applicant was apprehended and 
taken to Bell County Jail in Killeen, Texas on the charge of lewd conduct.

6.  The applicant's duty status was changed from CCA to PDY on 2 October 1978.

7.  The applicant accepted NJP on 18 December 1978, under the provisions of  
Article 15 of the UCMJ, for failing to go at the time prescribed to his appointed place of 
duty, on or about 15 November 1978.  His punishment consisted of a reprimand.

8.  The applicant accepted NJP on 8 June 1979, under the provisions of Article 15 of the 
UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or about 
8 June 1979.  He was punished to a reprimand, reduction to rank/paygrade private/E-2, 
a forfeiture of $75.00 pay per month for two months, and extra duty for 21 days.

9.  The applicant accepted NJP on 17 January 1980, under the provisions of Article 15 
of the UCMJ, for failing to go at the time prescribed to his appointed place of duty, on or 
about 2 January 1980, and for failing to obey a lawful order by having a female in his 
room, on or about 2 January 1980.  He was sentenced to a reduction in rank/grade to 
private/E-1, forfeiture of one half of one month's pay for two months ($224.00 per month 
for two months), extra duty for 30 days, and restriction for 30 days.

10.  Before a summary court-martial on or about 28 February 1980, at Fort Hood, 
Texas, the applicant was convicted of the following offenses:

*	willfully disobeying a lawful order to not have any females in his room, on or 
about 26 January 1980  
*	wrongfully appropriating an aircraft clock, serial number 39178, of a value of 
about $160.00, property of the U.S. government, on or about 7 February 1980
*	orally communicating to a female Soldier indecent and insulting language, on or 
about 26 January 1980

He was sentenced to 14 days of confinement at hard labor.  The convening authority 
approved the sentence as adjudged and ordered it executed.  The service of the 
sentence to confinement at hard labor for 14 days was deferred on 29 February 1980 
and the deferment was rescinded effective on 5 March 1980.

11.  The applicant's duty status was changed from PDY to confined by military 
authorities (CMA) on 5 March 1980. 

12.  The applicant's immediate commander notified the applicant of his intent to initiate 
actions to separate the applicant under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct.  
However, neither the notification memorandum nor the record of the applicant's meeting 
with counsel and election of options is available for review.

13.  The applicant's immediate commander formally recommended the applicant's 
separation from service on or about 24 April 1980, under the provisions of Army 
Regulation 635-200, paragraph 14-12, for misconduct.  In his recommendation, the 
applicant's commander stated that he was convinced the applicant was not and would 
never be the quality Soldier the U.S. Army required.  He stated that at first, he felt that a 
rehabilitation transfer would be beneficial but after further counseling, he revised his 
estimate.  The applicant was not a mean or dangerous Soldier but he was habitually 
late, he consistently ignored orders, and he accomplished less than the minimum to get 
by.  The applicant had no desire to stay in the Army or to do an honest day's work or to 
improve himself.  He was of no benefit to the Army and the Army would save money 
and supervisor man hours by turning him into a civilian.

14.  The applicant's complete separation packet is not available.  However, his  
DD Form 214 shows he was discharged on 2 June 1980 under the provisions of Army 
Regulation 635-200, paragraph 14-33b(1), for misconduct – frequent incidents of a 
discreditable nature with civil or military authorities.  His service was characterized as 
UOTHC and he was issued the separation code "JKA." 

15.  The applicant submits his counsel's letter to the ABCMR and his counsel's 
Memorandum in Support of Application of Military Records along with Exhibits A 
through M as previously listed.  These documents were provided to support his 
contentions of good character, his post-service conduct, and how the Wilkie 
Memorandum should support his request.

16.  The Board should consider the applicant's statements and provided evidence in 
accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

The Board carefully considered the applicants 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 reason for his separation, character 
references statements, and whether to apply clemency.  The Board found insufficient 
evidence of in-service mitigating factors for the repeated misconduct and the applicant 
provided no evidence of post-service achievements to weigh a clemency determination.  
Based on a preponderance of evidence, the Board determined that the character of 
service, separation code, and reason for separation the applicant received upon 
discharge was not in error or unjust.

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

:XX	:XX	:XX	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, U.S. Code, 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 635-5-1 (SPD Codes) prescribes the specific authorities 
(regulatory, statutory, or other directives), the reasons for the separation of members 
from active military service, and the SPD codes to be used for these stated reasons.  
This regulation shows the SPD code of "JKA" as shown on the applicant's DD Form 214 
specified the narrative reason for separation as "Misconduct – frequent incidents of a 
discreditable nature with civil or military authorities" and that the authority for separation 
under this SPD code was "Army Regulation 635-200, Chapter 14."

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  The version in effect at the time provided that:

	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.

   c.  Chapter 14 established policy and prescribed procedures for separating members 
for misconduct.  Specific categories included minor disciplinary infractions (a pattern of 
misconduct consisting solely of minor military disciplinary infractions), a pattern of 
misconduct (consisting of discreditable involvement with civil or military authorities or 
conduct prejudicial to good order and discipline), commission of a serious offense, and 
convictions by civil authorities.  Action would be taken to separate a member for 
misconduct when it was clearly established that rehabilitation was impracticable or was 
unlikely to succeed.  A UOTHC discharge was normally appropriate for a Soldier 
discharged under this chapter.  However, the separation authority could direct a general 
discharge if such was merited by the Soldier’s overall record.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service Boards for Correction of Military/Naval 
Records on 25 July 2018 [Wilkie Memorandum], 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)	 AR20200001171

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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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ABCMR Record of Proceedings (cont)	 AR20200001171


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ABCMR Record of Proceedings (cont)	AR20200001171


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