IN THE CASE OF: 

		BOARD DATE: 17 May 2023

		DOCKET NUMBER: AR20220009660


APPLICANT REQUESTS: an upgrade of his characterization of service from under 
other than honorable conditions to honorable and a personal appearance hearing 
before the Board, via video or phone.

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

*	DD Form 149 (Application for Correction of Military Record), 7 July 2022
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 he was young and did not receive counseling. He feels like he 
was punished twice. He was convicted by a civilian court, served time in jail, and then 
discharged from the Army with no benefits. He wants to apply for benefits with the 
Department of Veterans Affairs and buy a house. He currently works for the Veterans of 
Foreign Wars. 

3.  On 7 June 1982, the applicant enlisted in the Regular Army. 

4.  On 27 April 1983, he received a DA Form 4856 (General Counseling), which shows, 
in part, he was counseled for the following infractions –

*	On 27 April 1983, keys to a rental car L&M Auto Rental not returned and bad 
check for the rental
*	On 25 April 1983, a dishonored check to Army and Air Force Exchange
*	Signature Loan Company, amount due $23.00
*	Phone conversation with Mr.  at Fort Hood, National Bank, over $1,000 in 
outstanding checks, total of 53 checks, opened an account with $20.00 with no 
other deposits, 19 checks came back today
*	Received a call from Belleville Surplus for $36.83 

5.  Several letters issued by the Army and Airforce Exchange, which shows, in part, 
dishonored check notifications for $50.00, $25.00, $50.00, $119.29, $11.00, $26.95, 
$54.40, and $39.20.

6.  On 9 June 1983, Sergeant , stated the applicant has financial problems, and he has 
not attempted to fix these problems. The applicant’s appearance is declining. He is 
considering recommending the applicant for a chapter; there is no use for the applicant. 
Applicant has borrowed money from numerous troops in the barracks and is unable to 
repay them.

7.  A misdemeanor complaint, filed on 14 June 1983, states, the complainant had good 
reason to believe, on or about 24 April 1983, the applicant did, with intent to deprive the 
owner of Gibson Products Company of property/merchandise of a value of at least 
$20.00 and less than $200.00, did knowingly and intentionally, unlawfully appropriate 
said property/merchandise by worthless check, without the owners' effective consent. 

8.  A letter from Signature Loan Co, dated 16 June 1983, to the applicant's commander, 
requested assistance in collecting a delinquent debt of $71.60.

9.  A letter from Western Corner, 17 June 1983, shows the applicant failed to 
acknowledge a previous letter, dated 10 May 1983, informing him a check in the amount 
of $52.50, was returned for non-sufficient funds. The applicant was further informed he 
had 10 days to pay the merchant the debt owed, otherwise, in accordance with State 
law, the State would presume the check was written with the intent to deprive the 
merchant of property; theft. 

10.  On 20 June 1983, the applicant was counseled for failure to report to duty.

11.  On or about 28 June 1983, a misdemeanor complaint filed with the State shows, on 
or about 23 April 1983, the applicant did, with intent deprive the owner K-mart, of 
property/merchandise, of a value of at least $20.00 but less than $200.00, did, 
knowingly and intentionally, unlawfully appropriate said property/merchandise by 
worthless check, without the owner's effective consent.

12.  Sergeant , stated on 6 July 1983, the applicant reported he was going on sick call, 
and instead was found in his room asleep. 

13.  A letter from Central Auto Parts, dated 8 July 1983, informed the applicant's 
commander, that on 26 June 1983, the applicant wrote a check for $55.00. The check 
was returned on 5 July 1983 because the account was closed. The company stated 
they accepted the check in good faith, and they would appreciate the matter being 
resolved quickly. Additionally, there would be a $10.00 service charge for the returned 
check.

14.  A letter from A&M Enterprises, Stereo World, dated 11 July 1983, informed the 
applicant's commander that the applicant opened and account for $459.12, on 18 April 
1983. The applicant had missed the last three installment payment and had yet to 
render any payment to the company.

15.  On 12 July 1983, the State/County court motioned that they were ready for trial on 
the applicant’s merits. On the same day, the applicants command received a letter from 
International Collections for a debt in the amount of $62.50.

16.  On or about 28 July 1983, the State/County court found applicant guilty of theft by 
worthless check. His punishment consisted of a fine of $200.00, $71.00 court cost and 
confinement in the county jail for one year.

17.  On 19 August 1983, the applicant's immediate commander notified the applicant of 
his intent to initiate separation action against him under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12, 
based on his civil conviction of theft by worthless checks. 

18.  On the same day the applicant’s commanding officer, stated the applicant failed to 
return the counseling statement and therefore the applicant waived a hearing by a 
board of officers. The intermediate commander recommended approval. 

19.  A memorandum to the applicant from Trial Defense Services, Subject Advice by 
Defense Counsel, dated 19 August 1983, reads:

...you are being considered for discharge from the US Army for civil conviction in 
accordance with AR 635-200 [because]... you were convicted on 28 July 1983 by the 
...County Court ... of theft with worthless check and were sentenced to confinement 
in the ...County Jail for 1 year and a fine of $200.00. ...l [was] appointed to represent 
you... I am an attorney, a member of the Bar of the State..., and... a commissioned 
officer in the Judge Advocate General Corps. ...Normally, in such cases, an 
undesirable discharge is issued... An undesirable discharge may affect you the rest 
of your life. You will lose certain benefits that you would be entitled to if you received 
an honorable or a general discharge certificate.

...You can request that a board of officers decide your case and that I, or a 
designated military attorney, if reasonably available, or a civilian attorney at your 
own expense, represent you before this board. You may submit statements in your 
own behalf if you want. You may ask that witnesses, if reasonably available, testify 
before the board in your behalf. Or, you may waive all of these rights and let the 
Commanding General decide whether to discharge you, and if applicable, the type of 
discharge characterization to be issued to you. ...If you are a member of a minority 
group, you may request that a minority group officer, if reasonably available, be 
appointed as a member of the board of officers that would decide your case, in the 
event that you request board action.

...In the event you do not complete the Individual and Counsel Statement... and 
return it... within 30 days, then the Army will process your case without a hearing by 
a board of officers.

20.  On 19 October 1983, the separation authority approved his discharge, directed the 
issuance of a under other than honorable conditions discharge, and the applicant's 
reduction in rank/grade to private (PV1)/E-1. 

21.  On 6 December 1983, Headquarters, 2nd Armored Division, published Orders 
Number 233-29 ordering his discharge effective 23 December 1983.

22.  The applicant was discharged from active duty on 6 December 1983 under the 
provisions of AR 635-200, Chapter 14, Section II, as the result of civilian conviction, with 
an under other than honorable conditions character of service. His DD Form 214 
(Certificate of Release or Discharge from Active Duty) shows:

	a.  He completed 1 year, 1 month, and 4 days of net active service.

	b. He did not receive any personal decorations.

	c.  His Separation Code was JKB; and Reenlistment Code was RE-3, 3B.

	d.  He had lost time from 11 July 1983 - 23 December 1983.

23.  There is no indication that the applicant requested an upgrade of his discharge from 
the Army Discharge Review Board within its 15-year statute of limitations.

24.  Regulatory guidance provides action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely 
to succeed. Specific categories include convictions by civil authorities. A discharge 
under other than honorable conditions is normally appropriate. 

25.  In reaching its determination, the Board should consider the applicant’s petition and 
his service record in accordance with the published equity, injustice, or clemency 
determination guidance.


BOARD DISCUSSION:

1.  After reviewing the application, all supporting documents, and the evidence found 
within the military record, 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 noted, the applicant 
provided insufficient evidence of post-service honorable conduct that might have 
mitigated the discharge characterization.  The Board found insufficient evidence of in-
service mitigating factors for the misconduct 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 to an honorable 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 3 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 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel) sets forth the 
basic authority for the separation of enlisted personnel. 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.

	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.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (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 provides standards and principles to 
guide Boards in application of their equitable relief authority. In determining whether to 
grant relief based on 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.

4.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 
2-11, shows applicant’s do not have a right to a hearing before the ABCMR. The 
Director or the ABCMR may grant a formal hearing whenever justice requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220009660


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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