IN THE CASE OF: 

		BOARD DATE: 15 February 2023

		DOCKET NUMBER: AR20220003915


APPLICANT REQUESTS:  In effect, upgrade of his under other than honorable 
conditions (UOTHC) discharge and a personal appearance before the Board via 
video/telephone.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Self-authored Letter
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Character Reference Letters (five)
*	DA Form 751 (Telephone or Verbal Conversation Record)

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. 
Code, 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 that while he was stationed at Fort Ord, California; met a female 
who he had been seeing for six to nine months. They would always meet in, where they 
would spend time together. One night she brought him to her house where they spent 
the night. In the morning when he got up to leave, he realized that she was married and 
that her husband was an officer in an infantry unit. The husband found out that the 
applicant had been seeing his wife and he started searching for him. The applicant, 
talked to his first sergeant and the chaplain who both told him that the best thing to do 
was leave the post and return after 366 days or later. He did this and was discharged 
from the service. He did not have an idea at the time what it would do to him. Ever since 
then, he has been supporting the military.

3.  The applicant enlisted in the Regular Army on 31 March 1983, for 4 years. Upon 
completion of training, he was awarded military occupational specialty 13F (Fire Support 
Specialist).
4.  On 25 June 1984, the applicant was reported as absent without leave (AWOL) and 
remained absent in a desertion status until he surrendered to military authorities on 
27 June 1985.

5.  Court-martial charges were preferred against the applicant on 3 July 1985 for 
violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged with being AWOL from on or about 25 June 1984 to on 
or about 27 June 1985.

6.  The applicant consulted with legal counsel on 3 July 1985 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 bad conduct discharge; and the 
procedures and rights that were available to him.

	a.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provisions 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 declined to submit statements in his own behalf.

7.  On 27 August 1985, the separation authority approved the applicant's request for 
discharge in lieu of trial by court-martial and directed his reduction to the lowest enlisted 
grade and the issuance of an UOTHC Discharge Certificate.

8.  The applicant was discharged on 13 September 1985. His DD Form 214 confirms he 
was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the 
good of the service - in lieu of court-martial. He was discharged in the lowest enlisted 
grade and his service was characterized as UOTHC. He completed 1 year, 5 months, 
and 11 days of net active service this period. He was awarded or authorized the Army 
Service Ribbon, Rifle M-16 (Marksman) Badge and the Hand Grenade (Expert) Badge.

9.  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.
10.  The applicant provides:

	a.  Character Reference Letters that collectively attest to the applicant's talents, 
leadership, devotion, kindness, and passion. Several letters that speak of his dedicated 
service and support to the local post of the American Legion.

	b.  Telephone or verbal conversation record dated 1 July 1985, that shows there was 
a discussion that shows the possible reason for his AWOL status was problems with 
marriage.

11.  Clemency guidance to Boards for Correction of Military Records/Naval Records 
(BCMR/NR) does not mandate relief, but rather provides standards and principles to 
guide Boards in application of their equitable relief authority to ensure each case will be 
assessed on its own merits. In determining whether to grant relief BCM/NRs 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. This includes consideration of changes in policy, whereby 
a service member under the same circumstances today would reasonably be expected 
to receive a more favorable outcome.

12.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. In reaching its determination, the Board shall consider the 
applicant's petition, available records and/or submitted documents in support of the 
petition.

BOARD DISCUSSION:

1.  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.  Upon review of the applicant’s petition and available military 
records, the Board found insufficient evidence of in-service mitigating factors for the 
misconduct and the applicant provided no evidence of post-service achievements or 
character letters of support to weigh a clemency determination. The Board determined 
the applicant has not demonstrated by a preponderance of evidence an error or 
injustice warranting the requested relief, specifically an upgrade of the under other than 
honorable conditions (UOTHC) discharge. Therefore, the Board denied relief.
2.  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.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	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.


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 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The ABCMR has the discretion to hold a hearing; applicants do not have a right to 
appear personally before the Board. The Director or the ABCMR may grant formal 
hearings whenever justice requires.

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 10 provided 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.

4.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and BCM/NRs 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 type 
of court-martial. However, the guidance applies to more than clemency from a 
sentencing in a court-martial; it also applies to other corrections, including changes in a 
discharge, which may be warranted based on equity or relief from injustice.

   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, BCM/NRs 
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)	AR20220003915


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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