ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:   BOARD DATE: 22 February 2022 DOCKET NUMBER: AR20210010281 
APPLICANT REQUESTS: His under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. He also requests a personal appearance before the Board via video/telephone. 
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) 

. 
DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 August 1982 


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 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 served over 30 months in the Regular Army and 90 days in the retraining brigade.  He has paid his debt and would like to receive his benefits. 

3. 
The applicant enlisted in the Regular Army on 18 April 1980. 

4. 
The applicant accepted non-judicial punishment on 9 April 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful possession of marijuana on or about 28 January 1981. 

5. 
Before a summary court-martial on or about 26 May 1982, at Hanau, Republic of Germany, the applicant was found guilty of two specifications of assault, and one specification of possession of hashish.  The court sentenced him to reduction to the grade of private/E-1, forfeiture of two-thirds pay for one month, and confinement at hard labor for 30 days. 

6. 
The applicant accepted non-judicial punishment on 26 July 1982, under the provisions of Article 15 of the UCMJ, for dereliction of the performance of duty on or about 26 July 1982. 

7. 
The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. 

8. 
The applicant was discharged on 27 August 1982.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b, by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities. His service was characterized as UOTHC. He completed 2 years, 3 months, and 17 days of active service with lost time from 26 May to 16 June 1982. 

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


BOARD DISCUSSION: 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. 
1. 
The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 

2. 
The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant provided insufficient evidence of post-service achievements or letters of reference in support of a clemency determination. The Board found insufficient evidence of in-service mitigation for the serious misconduct. After reviewing the application and all supporting documents, the Board found that relief was not warranted based upon guidance for consideration of discharge upgrade requests. Based on a preponderance of evidence, the Board determined that the character of service the applicant received 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 

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. 
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.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

3. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 


a. 
 Paragraph 3-7a provides that 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. 
 Paragraph 3-7b provides that 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may 


direct a general discharge if such is merited by the Soldier’s overall record. 
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 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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