IN THE CASE OF: 

		BOARD DATE:  10 November 2022

		DOCKET NUMBER: AR20220004263


APPLICANT REQUESTS: reconsideration of his previous requests for upgrade of his 
under other than honorable conditions (UOTHC) discharge.

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

DD Form 149 (Application for Correction of Military Record)

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 Numbers AR2002066314 on 23 April 2002 and 
AR20090010689 on 9 November 2009.

2.  The applicant states, in effect, he was not provided a military attorney. He was a 
young Soldier and didn’t know his rights. He was told by the captain (CPT) what to say 
and was tricked and forced out. He didn’t have any drugs or money from the sell, and 
no one saw him give private (PVT) LLL anything, because he didn’t. CPT W__ kept 
pressure on him every day and he couldn’t take it anymore. All he is asking is for the 
Army to give him another chance. 

3.  The applicant enlisted in the Regular Army on 20 June 1974, for three years.

4.  Court-martial charges were preferred against the applicant on 11 February 1975, for 
violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged at Fort Eustis, VA, with one specification of wrongfully 
and unlawfully selling a controlled dangerous substance, tablets of Lysergic Acid 
Diethylamide (LSD) to Private LLL on or about16 December 1974.

5.  The applicant consulted with legal counsel on or about 6 March 1975 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 he was making this request of 
his own free will and had not been subjected to any coercion whatsoever by any person. 
He had been advised of the implications that are attached to it. By submitting this 
request for discharge, he acknowledged that he was guilty of the charge against him, or 
of a lesser included offense that also authorized the imposition of a bad conduct or 
dishonorable discharge. Moreover, he stated that under no circumstances did he desire 
further rehabilitation for he had no desire to perform further military service. 

	b.  He elected to submit a statement in his own behalf.

	c.  In the applicant’s statement he states he wanted to make a career out of the 
Army to get off the street and learn some trades and see the world. The Army taught 
him to be an airframe repairman. He had never been in trouble before and had no 
Article 15’s or convictions. He was married and had a 3-month-old girl. He understood 
he was guilty of transferring LSD. He did not sell it nor get anything out of it. Some guy 
asked him, and his friend did they want to buy any, and they said no. They didn’t use it. 
He then asked if they knew anyone who used it. He said PVT L__ and he asked the 
applicant to see if PVT L__ would buy. The applicant talked to PVT L__ and he said yes 
and gave him the money. He did not realize that by acting as a middleman he could get 
in trouble because of his past clean record. He asked that his discharge be considered 
under honorable conditions.

6.  The separation authority approved the applicant's request for discharge on 13 March 
1975, under the provisions of Army Regulation 635-200, Chapter 10. He directed the 
applicant's reduction to the lowest enlisted grade and discharge for the good of the 
service with a DD Form 258A (Undesirable Discharge Certificate). 

7.  The applicant’s service record is void of the complete facts and circumstances 
surrounding his discharge. However, the applicant was discharged on 17 March 1975. 
His DD Form 214 (Report of Separation from Active Duty) shows he was discharged 
under the provisions of Army Regulation 635-200, Chapter 10. His service was 
characterized as UOTHC. He completed 8 months and 25 days of net active service. He 
lost time from 3 February to 5 February 1975. It also shows he was awarded or 
authorized the National Defense Service Medal.

8.  The Army Discharge Review Board (ADRB) considered the applicant's request for a 
discharge upgrade. The ADRB determined he was properly discharged and denied his 
petition on 13 September 1977 and on 2 January 1981.

9.  On 30 April 2002, the ABCMR considered the applicants request for a discharge 
upgrade. The Board determined that the applicant failed to submit sufficient relevant 
evidence to demonstrate the existence of probable error or injustice. 

10.  On 28 May 2010, the ABCMR stated the applicants request dated 4 June 2009 for 
reconsideration of ABCMR AR2002066314 was considered on 23 April 2002, and 
denied his request for upgrade of his discharge. The Board determined that his request 
for reconsideration was not received within one year of the ABCMR’s original decision. 
As a result, his request was returned without further action.

11.  Clemency guidance to the Boards for Correction of Military/Navy Records 
(BCM/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.

	a.  The available evidence shows 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.

	b.  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:

After reviewing the application and all supporting documents, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined relief was not warranted. The applicant’s contentions, the military 
record, and regulatory guidance were carefully considered.  Based upon the short term 
of honorable service completed prior to the criminal activity leading to the applicant’s 
separation, the Board concluded there was insufficient evidence of an error or injustice 
warranting a change to the applicant’s characterization of service.
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.
	 
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.  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.

2.  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)	AR20220004263


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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