IN THE CASE OF:  

BOARD DATE:  27 April 2022

DOCKET NUMBER:  AR20210017131


APPLICANT REQUESTS: in effect, that his under other than honorable conditions 
(UOTHC) be upgraded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States 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 he would like "the discharge on my record to be remove" 
because he was told he would receive all benefits from the military and the Department 
of Veterans Affairs (VA) to go back to school.  Because of the characterization of his 
discharge he cannot receive a grant for college are have the VA loan to purchase a 
house. He was lied to by the judge advocates office.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry 
Program on 18 November 1985.  He served on initial active duty for training from 1 June 
1987 through 23 September 1987.  He was released from the USAR on 29 March 1988 
to enlist in the Regular Army.

4.  The record indicates the applicant accepted nonjudicial punishment (NJP) under 
Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave 
(AWOL) commencing on or about 0700 hours 10 June 1988.  The continuation sheet 
showing the terminal date if his AWOL and punishment are not of record.  His 
DA Form 2-1 - Part II shows he was reduced to private 1 at this time.

5.  Court-martial charges were preferred against the applicant on 7 July 1988, for 
violations of the Uniform Code of Military Justice (UCMJ).  The relevant DD Form 458 
(Charge Sheet) shows he was charged with for the indicated offenses:

*	being absent without leave (AWOL) from on or about 1 July 1988 until on or 
about 7 July 1988
*	willfully disobeying a lawful order from a commissioned office to not leave the 
confines of the Fort Campbell installation on or about 1 July 1988 
*	willfully disobeying a lawful order from a commission officer to not wear civilian 
on or about 7 July 1988

6.  The applicant consulted with legal counsel on 12 July 1988 and was advised of the 
basis for the contemplated trial by court-martial; the maximum permissible punishment 
authorized under the UCMJ; the possible effects of a UOTHC discharge; and the 
procedures and rights that were available to him.  

	a.  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.  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 Department of Veterans Affairs (VA), and he 
could be deprived of his rights and benefits as a veteran under both Federal and State 
laws.  

	b.  He was advised he could submit any statements he desired in his own behalf; 
however, the applicant waived this right.

7.  A Defense Counsel Questionnaire and Sworn Statement show the applicant had two 
periods of AWOL totaling 11 days and one NJP. He acknowledged that he understood 
that he might be discharged under other than honorable conditions. He understood that, 
as a result of the issuance of such a discharge, he would be deprived of many or all 
Army benefits, that he might be ineligible for many or all benefits administered by the 
Veterans Administration, and that he might be deprived of his rights and benefits as a 
veteran under both federal and state law.

8.  The applicant's company and battalion commanders recommended approval of the 
applicant's request for discharge in lieu of trial by court-martial, and that he receive a 
UOTHC discharge on 15 July 1988.  

9.  The Separation authority approved the requested discharge, on 20 July 1988, and 
directed he be discharged with a UOTHC.

10.  The applicant was discharged on 25 July 1988, under the provisions of Army 
Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-
martial.  The DD Form 214 he was issued confirms his service was characterized as 
UOTHC.  His DD Form 214 further shows:

*	he was discharged in the rank/ grade of private 1/E-1
*	he had 3 Months and 25 days of active duty service this period with 5 months 
and 24 days of prior active duty service and 1 year, 10 months, and 18 days of 
inactive service
*	his narrative reason for separation as "For The Good of the Service"
*	his awards are shown as the Army Service Ribbon/ and the Marksman Badge 
with Rifle Bar
*	the form does not show his periods of lost time

11.  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.

12.  The applicant's record documents no acts of valor, significant achievement, or 
service warranting special recognition.


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted. The Board carefully considered the applicant's record of service, 
documents submitted in support of the petition and executed a comprehensive and 
standard review based on law, policy and regulation, and published Department of 
Defense guidance for liberal and clemency determinations requests for upgrade of his 
characterization of service. One potential outcome was to grant partial relief, upgrading 
the applicant’s discharge based on the punishment being harsh.  However, the Board 
majority upon review of the applicant’s petition and available military records, the Board 
found insufficient evidence of in-service mitigating factors for the misconduct to weigh a 
clemency determination.  The Board noted, the applicant provided insufficient evidence 
of post-service achievements or character letters of support showing honorable conduct 
that might have mitigated the discharge characterization.  Based on a preponderance of 
evidence, the Board determined that the character of service the applicant received 
upon separation was not in error or unjust. Therefore, relief was denied.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

X	:	:	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):  Not applicable


REFERENCES:

1.  Title 10, United States Code (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.

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 Soldiers 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, an under other than honorable 
conditions discharge was normally considered appropriate. ==== At the time of the 
applicant's separation the regulation provided for the issuance of an undesirable 
discharge certificate.

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 [Wilkie Memorandum], regarding equity, injustice, or clemency 
determinations. 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.  

	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.)	AR20210017131


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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