IN THE CASE OF:   
BOARD DATE: 4 April 2022
DOCKET NUMBER:  AR20210009943 


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)

•DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 11 March 1983

•Correspondence from Congressional Representative, dated 9 June 2021



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states he faithfully served his country.  Now that Congress haschanged the laws for Veterans, he would like an honorable discharge so that he canreceive his full benefits.

3.The applicant enlisted in the Regular Army on 20 September 1979.  He reenlisted inthe Regular Army on 3 September 1982, for a period of three years.

4.Court-martial charges were preferred against the applicant on 26 January 1983, forviolations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (ChargeSheet) shows he was charged with stealing the property of another Soldier on or about15 December 1982, and wrongfully making a false statement under oath on or about22 December 1982.

5.The applicant consulted with legal counsel on 11 February 1983 and was advised ofthe basis for the contemplated trial by court-martial; the maximum permissiblepunishment authorized under the UCMJ; the possible effects of an UOTHC discharge;and the procedures and rights that were available to him.
a.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge 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.  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 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. 

b.He elected not to submit statements in his own behalf.

6.The separation authority approved the applicant's request for discharge on22 February 1983, under the provisions of Army Regulation 635-200, Chapter 10, anddirected the applicant's reduction to the lowest enlisted grade, with the issuance of anUOTHC discharge.

7.The applicant was discharged on 11 March 1983.  His DD Form 214 confirms hewas discharged under the provisions of Army Regulation 635-200, Chapter 10, for thegood of the service – in lieu of court-martial.  His service was characterized as UOTHC.

8.The applicant provides a request for discharge upgrade through the office of hiscongressional representative.

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

BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents and the evidence foundwithin the military record, the Board determined that relief was not warranted. TheBoard carefully considered the applicant’s request, supporting documents, evidence inthe records and published DoD guidance for consideration of discharge upgraderequests. The Board considered the frequency and nature of the misconduct, reason forseparation and whether to apply clemency. The majority of Board members foundinsufficient evidence of in-service mitigating factors to overcome the misconduct and theapplicant provided no evidence of post-service achievements or letters of reference toweigh in support of a clemency determination. One Board member noted the applicant’sprior period of honorable service and determined the punishment too severe for themisconduct. Based on a preponderance of evidence, the Board determined that thecharacter of service the applicant received upon separation was not in error or unjust.

2.Prior to closing the case, the Board did note the analyst of record administrativenotes below, and recommended the correction is completed to more accurately depictthe military service of the applicant.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: :X : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: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. 


ADMINISTRATIVE NOTE(S): 

A review of the applicant's record shows his DD Form 214, for the period ending 11 March 1983, is missing important entries that affect his eligibility for post-service benefits.  As a result, amend the DD Form 214 by adding the following entries in  item 18 (Remarks): 

•SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE

•CONTINUOUS HONORABLE ACTIVE SERVICE FROM 790920 UNTIL820902



REFERENCES: 

1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

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

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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 provided that a member who had committed an offense or offenses,for which the authorized punishment includes 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 toService Discharge Review Boards and Service Boards for Correction of Military/NavalRecords 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 thecourt-martial forum.  However, the guidance applies to more than clemency from asentencing in a court-martial; it also applies to any other corrections, including changesin a discharge, which may be warranted on equity or relief from injustice grounds.

a.This guidance does not mandate relief, but rather provides standards andprinciples 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 ofservice 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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