ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   
BOARD DATE: 29 January 2021 
DOCKET NUMBER:  AR20200003001 
APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20130008922 on 9 January 2014.  Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded an under honorable conditions (general) 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 21 January 2020 . DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 17 May 1973 . Character Reference Letter, dated 7 January 2020 
FACTS: 
1. 
Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130008922 on 9 January 2014. 

2. 
The applicant states his spouse was sick and he was not allowed to go home on emergency leave. 

3. 
The applicant was inducted into the Army of the United States on 17 April 1972. 

4. 
Court-martial charges were preferred against the applicant on 27 April 1973, for violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL), from on or about 31 October 1972 through on or about 21 April 1973. 

5. 
The applicant consulted with legal counsel on 30 April 1973. 


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 under other than honorable conditions 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 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial.  He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 
c. He elected not to submit a statement in his own behalf. 
6. 
The separation authority approved the applicant's request for discharge on 11 May 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and the issuance of a DD Form 258A (Undesirable Discharge Certificate). 

7. 
The applicant was discharged on 17 May 1973, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  The DD Form 214 he was issued confirms he was discharged in the lowest enlisted grade and his service was characterized as UOTHC. 

8. 
The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge.  Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 

9. 
The Army Discharge Review Board considered the applicant's request for a discharge upgrade, determined that he was properly and equitably discharged, and denied his petition on 27 September 1988. 

10. 
The applicant provides a character reference letter from a lifelong friend, who attests to the applicant's devotion to family, leadership, and integrity. 

11. 
The Board should consider the applicant's statement and overall military service in accordance with the published equity, injustice, or clemency determination guidance. 


BOARD DISCUSSION: 
The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's 
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statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and, absent addition evidence of post-service achievements, the Board found the character reference letter provided by applicant insufficient in support of 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. 
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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130008922, dated 9 January 2014. 
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. 
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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 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 10 of that regulation provided, in pertinent part, that a member who had committed 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 UOTHC discharge was normally considered appropriate. 


3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service 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. 
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