IN THE CASE OF: 

		BOARD DATE:  9 September 2022

		DOCKET NUMBER: AR20220002424


APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of 
Military Records (ABCMR) decisions. Specifically, he requests his under other than 
honorable conditions (UOTHC) discharge be upgraded to a general, under honorable 
conditions discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record) (two) with self-
authored statement
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Numbers 
AR20090018145 on 27 May 2010 and AR 20180010991 on 20 August 2019.

2.  As a new argument, the applicant states he would like his discharge changed to a 
general discharge. He had no behavior issues at all and was a new Soldier who was 
just married. He lost his wife behind this and his life was changed. He joined the Army 
to serve his country. He can’t even go to the Veterans Administration Hospital or dental, 
nothing. He was unjustly charged for something he had nothing to do with. He just 
stored a speaker in his wall locker for someone he thought was a friend. Turns out he 
stole it and when he was caught, he blamed the applicant for it. He would not have 
thrown his career away for a speaker that someone else stole. He had no trouble 
whatsoever until that happened. It’s not fair and no one will listen it seems. He was 
about to get promoted and had no problems in the unit as he was well liked. There was 
no real investigation, and he had no lawyer or anyone to represent him.

3.  The applicant provides a self-authored statement; wherein, he reiterates the 
circumstances surrounding his discharge.

4.  The applicant enlisted in the Regular Army on 18 January 1979. Upon completion of 
training, he was awarded military occupation specialty 19E (Armor Crewman).
5.  Court-martial charges were preferred against the applicant on 11 September 1979, 
for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged with:

*	two specifications of conspiring with another Soldier to commit an offense of 
unlawful entry into the room of another Soldier and larceny of stereo equipment
*	one specification of larceny for stealing stereo equipment (in excess of $100)
*	one specification of unlawfully entering a room with intent to commit a criminal 
offense, on or about 3 September 1979

6.  The applicant consulted with legal counsel on or about 9 October 1979 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 a UOTHC 
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 Veterans Administration, and he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.

	b.  He elected to submit a statement in his own behalf.

	c.  In a Statement in Support of Request for Discharge, the applicant states the 
reason he wished to be discharged from the service was because of the charges 
pending against him. He had begun experiencing problems both in his home and his 
unit. He felt a discharge would alleviate these problems.  

7.  The applicant's previous case shows, the separation authority approved the 
applicant's request for discharge on 20 November 1979, under the provisions of Army 
Regulation 635-200, Chapter 10, and directed his reduction to the lowest enlisted grade 
and the issuance of a UOTHC.

8.  The applicant’s service record is void of the complete facts and circumstances 
surrounding his discharge. However, his DD Form 214 (Certificate of Release or 
Discharge from Active Duty) shows he was discharged on 6 December 1979, under the 
provisions of Army Regulation 635-200, Chapter 10, for the good of the service. He 
completed 10 months and 19 days of active service. He was awarded or authorized the 
Sharpshooter Marksmanship Qualification Badge 45 Caliber Pistol.

9.  On 28 May 2010, the ABCMR denied his request for upgrade of his discharge. The 
Board determined he was discharged in accordance with applicable laws and 
regulations. The evidence presented did not demonstrate the existence of a probable 
error or injustice. Therefore, the Board determined that the overall merits of his case 
were insufficient as a basis for correction of the records.

10.  On 20 September 2019, the ABCMR denied his request for upgrade of his 
discharge. After reviewing the application and all supporting documents, the Board 
determined that relief was not warranted. 

11.  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 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.  Published guidance to the BCM/NRs clearly indicates that the guidance is not 
intended to interfere or impede on the Board's statutory independence. The Board will 
determine the relative weight of the action that led to the discharge and whether it 
supports relief or not. 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:

The Board carefully considered the applicants request, supporting documents, evidence 
in the records and published DoD guidance for consideration of discharge upgrade 
requests.  The Board considered the applicant's statement, his record of service, the 
frequency and nature of his misconduct, the reason for his separation and whether to 
apply clemency.  The Board found insufficient evidence of in-service mitigating factors 
for the misconduct and the applicant provided no evidence of post-service 
achievements or letters of support to weigh a clemency determination.  Based on a 
preponderance of evidence, the Board determined that the character of service the 
applicant received upon separation was not in error or unjust.

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted.

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 to amend the decision of the ABCMR set forth in Docket Number 
AR20090018145 on 27 May 2010 and AR 20180010991 on 20 August 2019.


		  
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 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.

2.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and 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 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, 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.  

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20220002424


1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1