IN THE CASE OF 

		BOARD DATE:  30 September 2022

		DOCKET NUMBER: AR20220002989


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record) with self-authored 
statement
*	DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, U.S. 
Code (USC), Section 1552 (b); however, the (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 defers his statement to a self-authored statement.

3.  By letter to the Board, the applicant states: he is 77 years old, and his health is not at 
its best.  He is looking to have military benefits, and never considered the 
consequences earlier in life.  He did not receive a dishonorable discharge nor was there 
a military trial, only a civil court charge.

4.  The applicant at the age of 17-years old, and with the consent of his parents, 
enlisted in the Regular Army on 13 June 1961.

5.  Court-martial charges were preferred against the applicant on 18 June 1962 for 
violations of the Uniform Code of Military Justice (UCMJ).  His DD Form 458 (Charge 
Sheet) shows he was charged with being absent without leave from, on or about 7 June 
1962 through, on or about 11 June 1962.  His punishment included forfeiture of $50.00 
for one month and reduction to the rank/grade of private/E-1.

6.  Letter dated 12 February 1963 from the Office of Clerk Superior Court.  The 
applicant on 8 February 1963 pleaded guilty to theft of an automobile and was given a 
sentence of two to three years in the Georgia penitentiary.

7.  DA Form 1049 (Personnel Action) dated 14 February 1963 shows that the 
applicant’s commander recommended that he be separated from service under Army 
Regulation 635-206 and be issued an undesirable discharge.  His commander cited, as 
the specific reason for the proposed separation, the applicant pleaded guilty to auto 
theft, and was given a sentence of two to three years in the penitentiary.

8.  The separation authority on 19 February 1963 directed that the applicant be 
separated under the provisions of Section III, Army Regulation 635-206, by reason of 
conviction by civil court, and that he be issued a DD Form 258A (Undesirable Discharge 
Certificate).

9.  The applicant was discharged on 11 March 1963.  The DD Form 214 (Armed Forces 
of the United States Report of Transfer or Discharge) he was issued shows he was 
discharged under the provisions of Army Regulation 635-206, in the lowest enlisted 
grade, and his service was characterized as UOTHC.  He was credited with 1 year, 3 
months and 21 days of net active service, and had 159 days of lost time.

10.  The Board should consider the applicant's statement in accordance with the 
published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After reviewing the application, the Board found that relief was/was not 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 considered the applicant's statement, the applicant's record of 
service, the frequency and nature of the applicant's misconduct and the reason for 
separation. The applicant was discharged from active duty due to Misconduct due to 
civil conviction. The applicant provided no evidence of post-service achievements or 
letters of reference in support of 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.


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, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at 
the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b provides that 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. 

3.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the 
separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil 
court, and absence without leave or desertion).  Paragraph 33 of the regulation provided 
that members would be considered for discharge when it was determined that one or 
more of the following applied:  

	a.  When the Soldier was initially convicted by civil authorities, or action taken 
against the Soldier that was tantamount to a finding of guilty, of an offense for which the 
maximum penalty under the UCMJ was death or confinement in excess of 1 year; or

	b.  When initially convicted by civil authorities of an offense that involved moral 
turpitude, regardless of the sentence received or maximum punishment permissible 
under any code.

4.  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)	 AR20220002989


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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