IN THE CASE OF: 

		BOARD DATE: 20 May 2023

		DOCKET NUMBER: AR20220010208


APPLICANT REQUESTS: upgrade of his under other than honorable conditions 
(UOTHC) discharge to honorable.

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

DD Form 293 (Application for the Review of Discharge)

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 served 100 percent of his military service; he was never 
incarcerated. He served from 1 September 1977 until 12 December 1980.

3.  The applicant enlisted in the Regular Army on 1 September 1977 for three years. His 
military occupational specialty was 71L (Administrative Specialist). 

4.  The applicant's complete military records are not available for review; therefore, this 
case is being considered using very limited documents.

5.  The absence of the applicant's separation packet means the Board is unable to 
determine the specific circumstances surrounding his discharge. However, because the 
Board has the applicant's DD Form 214 (Certificate of Release or Discharge from Active 
Duty), it must presume administrative regularity, meaning unless there is proof to the 
contrary, the Board assumes the Army's actions were administratively correct. As stated 
in ABCMR's governing regulation, the Board is not an investigative body, and the 
applicant bears the responsibility for providing evidence to validate that an error 
occurred in the processing of his separation.

6.  The applicant underwent a medical examination in conjunction with separation on or 
about 11 August 1980, at Keller Army Hospital. It notes that to the best of his knowledge 
there had been no significant change in his medical condition since the accomplishment 
of this medical examination.

7.  A Disposition Form, dated 2 September 1980, shows the applicant was retained on 
active duty, pending trial by court martial. It was approved effective 29 August 1980.

8.  Orders 242-5, issued by Headquarters U. S. Military Academy, West Point, NY on 
12 December 1980, discharged the applicant.

9.  The applicant was discharged on 12 December 1980. His DD Form 214 shows he 
was discharged in the grade private/E-1. He was discharged under the provisions of 
Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), Chapter 10, for 
conduct triable by court martial. His characterization of service was UOTHC. He 
completed 3 years, 3 months, and 12 days of net active service. He was awarded or 
authorized the Army Good Conduct Medal and the Marksmanship Qualification Badge 
with Rifle Bar (M-16). 

10.  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.

11.  In reaching its determination, the Board can consider the applicant’s petition, 
arguments and assertions, and service record in accordance with the published equity, 
injustice, or clemency 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 found insufficient 
evidence of in-service mitigating factors to overcome the misconduct. 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.

2.  The Board noted, the applicant provided insufficient evidence of post-service 
achievements or character letters of support that would attest to his honorable conduct 
that might have mitigated the discharge characterization. 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.


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.  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 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.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, 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)	AR20220010208


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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