IN THE CASE OF: 

		BOARD DATE: 17 May 2023

		DOCKET NUMBER: AR20220011326


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to honorable.

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Report of Transfer or 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 was promised that his UOTHC discharge would be changed 
to honorable. This was never done and has greatly diminished his time in service, 
military benefits, and status. He was offered to get out because of a hepatitis diagnosis. 
If he had been offered a drug rehabilitation program things would have been different, 
and he would have stayed in.

3.  The applicant enlisted in the Regular Army on 17 February 1971 for 3 years. He 
completed training with award of military occupational specialty 12A (Pioneer). The 
highest grade he held was E-4.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform 
Code of Military Justice (UCMJ) on the following dates for the indicated offenses:

*	8 September 1971, for being absent from his place of duty on or about 1600 
hours on 4 September 1971
*	29 October 1971, for being absent from his place of duty on or about 0800 hours 
on 27 October 1971 
*	12 September 1972, for failure to go to his appointed place of duty at the time 
prescribed on or about 7 September 1972; his punishment included reduction to 
E-1

5.  The available record is void of a separation packet containing the specific facts and 
circumstances surrounding the applicant’s discharge processing.

6.  The applicant's DD Form 214 shows he was discharged on 15 January 1973, under 
the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted), 
paragraph 10-1 with Separation Program Number 246 (for the good of the service - in 
lieu of trial by court-martial). He was discharged in the grade of E-1, and his service was 
characterized as UOTHC. He had 1 year, 7 months, and 11 days of net active service, 
with 109 days of lost time.

7.  The issuance of a discharge under the provisions of Army Regulation 635-200, 
Chapter 10, required the applicant to have requested from the Army – voluntarily, 
willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all 
requirements of law and regulation were met and the rights of the applicant were fully 
protected throughout the separation process. The applicant has provided no evidence 
that would indicate the contrary.

8.  The Board should consider the applicant's statement 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 achievements or letters of support that 
could attest to his honorable conduct that might have mitigated the discharge 
characterization. 

2.  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.
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 sets forth the basic authority for the separation of enlisted 
personnel. The version in effect at that 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. A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

	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.

3.  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, regarding equity, injustice, or clemency determinations. Clemency 
generally refers to relief specifically granted from a criminal sentence. Boards for 
Correction of Military/Naval Records 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.)	AR20220011326


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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