IN THE CASE OF: 

		BOARD DATE:  30 September 2022

		DOCKET NUMBER: AR20220002395


APPLICANT REQUESTS: Reconsideration of the previous request for an upgrade of 
his under other than honorable conditions (UOTHC) discharge to an honorable 
discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Report of Separation from Active Duty)
*	6 Character Reference Letters

FACTS:

1. Incorporated herein by reference are military records that were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number 
AR20100015072 on 14 December 2010, wherein the Board denied the applicant's 
request as he failed to show through evidence that the record is in error or unjust.

2.  The applicant states that he is not the individual he was in 1974. It was a different 
time than it is today. He is older and wiser and requests the opportunity to say he 
proudly served.

3.  The applicant enlisted in the Regular Army on 8 February 1973, for a 4-year term of 
service. He was awarded military occupational specialty 11B (Light Weapons 
Infantryman).

4.  The applicant accepted non-judicial punishment, under the provisions of Article 15 of 
the Uniform Code of Military Justice (UCMJ), on 11 May 1973, without authority went 
absent without leave (AWOL) from 7 to 9 May 1973. His punishment included forfeiture 
of $150.00 for one month and restriction and extra duty for 30 days. 

5.  Before a special court-martial on or about 11 October 1973, at Fort Bragg, NC, the 
applicant was found guilty of being AWOL, from on or about 18 June to 11 September 
1973.  The court sentenced him to reduction to the rank/grade of private/E-1, forfeiture 
of $200.00 for four months, and confinement at hard labor for two months.

6.  The applicant underwent a mental status evaluation on 21 February 1974. The 
relevant DA Form 3822-R (Report of Mental Status Evaluation) shows he had normal 
behavior, was fully alert and oriented, and had clear thought process and normal 
thought content. The evaluating physician determined he had the mental capacity to 
understand and participate in any administrative proceedings and he was psychiatrically 
cleared for any administrative action deemed appropriate by his Command.

7.  Standard Form 88 (Report of Medical Examination) and Standard Form 93 (Report  
of Medical History) dated 21 February 1974,medically cleared the applicant for 
separation.

8.  The applicant's record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing. However, his DD Form 214 shows 
he was discharged on 24 April 1974, under the provisions of Army Regulation 635-200 
(Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service, 
in lieu of trial by court-martial. He was credited with 7 months and 19 days of net active 
service this period, and his service was characterized as UOTHC.

9.  On 14 December 2010, the Board determined that his discharge under chapter 10, 
Army Regulation 635-200, indicates he voluntarily requested discharge in lieu of trial by 
court-martial, although the specific offense(s) are unknown. Based on this record of 
indiscipline, his service clearly did not meet the standards of acceptable conduct and 
performance of duty for Army personnel. This misconduct rendered his service 
unsatisfactory. Therefore, there is no basis for granting him the requested relief.

10.  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.

11.  He provides six-character reference letters that attest to him being a loving, 
compassionate, giving husband and father for over 43 years. He has been a great 
neighbor and church friend for over seven years. He has been a life-long friend who is 
always willing to help others. He is a man with integrity with a huge heart for others and 
he has a great love for Christ.  He also provides a State of Criminal Record Search 
dated 18 October 2021.

12.  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 presumably 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.  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, the Board found that relief 
was warranted. The Board carefully considered the applicant’s request, supporting 
documents, evidence in the records, and published DoD guidance for liberal 
consideration of discharge upgrade requests. The Board also considered the applicant's 
statement, record of service, frequency and nature of the applicant's misconduct and 
the reason for separation. Although his separation packet is not available for review, 
other evidence shows he was charged with commission of an offense punishable under 
the UCMJ with a punitive discharge. After being charged, he would have consulted with 
counsel and presumably requested discharge under the provisions of AR 635-200, 
Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial and carry an under other than honorable conditions characterization of 
service. 

	a.  A majority of the Board determined that although his character of service is not in 
error, the applicant did provide 6 character reference letters that attest to him being a 
loving, compassionate, giving husband and father for over 43 years, that he has been a 
great neighbor and church friend for over seven years, that he has been a life-long 
friend who is always willing to help others, and that he is a man of faith. Although his 
service did not rise to the level required for an honorable characterization, a majority of 
the Board determined an upgrade to general, under honorable conditions discharge is 
appropriate under published DoD guidance for liberal consideration of discharge 
upgrade requests.

	b.  The member in the minority found that although the applicant submitted character 
reference letters, the fact remains that he received NJP for AWOL and was convicted by 
a special court-martial also for AWOL. He completed 7 months and 19 days of net 
active service this period, and his service was characterized as UOTHC. Based on a 
preponderance of evidence, the member in the minority determined that the character of 
service he received upon separation was not in error or unjust.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:X	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the 
ABCMR's decision in Docket Number AR20100015072 on 14 December 2010. As a 
result, the Board recommends that all Department of the Army records of the individual 
concerned be corrected by him a DD Form 214 for the period ending 24 April 1974, 
showing his character of service as Under Honorable Conditions, General.

*	Separation Authority: No Change
*	Separation Code: No Change
*	Reentry Code: No Change
*	Narrative Reason for Separation: No Change
		  
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 provided that a member who had committed an offense or offenses, 
for which the authorized punishment includes 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.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service 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)	 AR20220002395


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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