IN THE CASE OF:

		BOARD DATE: 21 June 2023

		DOCKET NUMBER: AR20220011337


APPLICANT REQUESTS:  In effect, 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)
*	Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)

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 is requesting that his characterization of service be 
reevaluated and upgraded due to the circumstances behind him being absent without 
leave (AWOL). While serving punishment from a field grade Article 15 (nonjudicial 
punishment (NJP)) for a previous AWOL, his mother suffered a heart attack and was in 
the hospital fighting for her life. He requested emergency leave to check on his mother 
but was denied. At the time, he felt he had no other option but to be at his mother's side. 
When his mother was released from the hospital and allowed to go back home, he 
immediately returned to his unit where he was subsequently discharged from the Army.

3.  The applicant enlisted in the Regular Army on 5 September 1979 for 3 years. He 
completed training with award of military occupational specialty 64C (Motor Transport 
Operator). The highest grade held was E-3.

4.  The applicant accepted NJP under the Uniform Code of Military Justice (UCMJ) on 
the following dates:

*	illegible date, for being AWOL from 19 December 1979 until 13 January 1980
*	15 October 1980, for failure to go to his place of duty on 9 October 1980; his 
punishment included reduction to E-2 (suspended), forfeiture of $116.00, and 14 
days of extra duty; the suspended reduction in grade was vacated on 
4 November 1980

5.  The available records contain three DA Forms 4187 (Personnel Action) that show he 
was:

*	reported as AWOL on 24 November 1980
*	dropped from the unit rolls on 24 December 1980
*	apprehended by civil authorities and returned to military control on 31 March 
1981

6.  Court-martial charges were preferred against the applicant on 7 April 1981 for 
violations of the UCMJ. The relevant DD Form 458 (Charge Sheet) shows he was 
charged with AWOL from on or about 24 November 1980 until on or about 31 March 
1981.

7.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 8 April 1981, shows 
he was found to be mentally responsible, able to distinguish right from wrong and to 
adhere to the right, and had the mental capacity to understand and participate in board 
proceedings. There were no disqualifying mental defects sufficient to warrant disposition 
through medical channels. It was recommended that he be administratively discharged.

8.  The applicant consulted with legal counsel on 9 April 1981 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 an under other than honorable 
conditions 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 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 VA, and he could be deprived of his rights and 
benefits as a Veteran under both Federal and State laws. 

	b.  He was advised he could submit any statements he desired in his own behalf; 
however, the applicant waived this right.

9.  The applicant was placed on excess leave on 10 April 1981.

10.  The separation authority approved the applicant's request for discharge on 6 May 
1981, for the good of the service. He directed that the applicant be reduced to the 
lowest enlisted grade and receive a DD Form 794A (UOTHC Discharge Certificate).

11.  The applicant was discharged on 14 May 1981 in the grade of E-1. His 
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was 
discharged under the provisions of Army Regulation 635-200, Chapter 10, for conduct 
triable by court martial and his service was characterized as UOTHC. He was credited 
with 1 year, 3 months, and 15 days of net active service with two periods of lost time 
totaling 145 days. 

12.  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.

13.  The applicant petitioned the Army Discharge Review Board (ADRB) for upgrade of 
his discharge. The ADRB denied the applicant's request on 7 February 1986.

14.  In determining whether to grant relief the Boards for Correction of Military/Navy 
Records (BCM/NR) 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 determined there is 
insufficient evidence of in-service mitigating factors for the misconduct to weigh a 
clemency determination. 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 determined the applicant has not demonstrated by a preponderance of 
evidence an error or injustice which would warrant an upgrade to the character of 
service the applicant received upon separation.  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.

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and 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.)	AR20220011337


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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