IN THE CASE OF: 

		BOARD DATE: 14 February 2023

		DOCKET NUMBER: AR20220005750


APPLICANT REQUESTS:  reconsideration of his previous request(s) to upgrade his 
under other than honorable conditions discharge. He also requests a personal 
appearance before the Board. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Dockets Number:

*	AR20180014952, on 9 May 2019
*	AR20210016617, on 12 April 2022

2.  The applicant states, in effect, he wants his discharge upgraded to either honorable 
or general. 

3.  Review of the applicant’s service records shows: 

	a.  He enlisted in the Regular Army on 1 October 1982. He held military occupational 
specialty 11B (Infantryman). He was assigned to Fort Campbell, KY.

	b.  On 7 April 1983, his unit reported him in an absent without leave (AWOL status 
and on 6 May 1983, he was dropped from the rolls as a deserter. He returned to military 
control on 8 June 1983.

	c.  On 14 June 1983, court-martial charges were preferred against the applicant for 
violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged with one specification of being AWOL from on or about 7 
April 1983 through on or about 8 June 1983.

	d.  On 17 June 1983, the applicant consulted with legal counsel. He was advised of 
the basis for the contemplated trial by court-martial for an offense punishable by a bad 
conduct discharge or a dishonorable discharge, the maximum permissible punishment 
authorized under the Uniform Code of Military Justice, the possible effects of a request 
for discharge, and of the procedures and rights that were available to him.  Following 
consultation with legal counsel, he requested discharge under the provisions of Army 
Regulation (AR) 635-200 (Personnel Separations), chapter 10, for the good of the 
service - in lieu of trial by court-martial. In his request for discharge, he indicated:

*	he was making this request of his own free will and had not been subjected to 
any coercion by any person 
*	he understood that by requesting discharge he was admitting guilt to the 
charges against him or of a lesser included offense that also authorized the 
imposition of a bad conduct or dishonorable discharge
*	he understood that, if his request for discharge is accepted, he may be 
discharged under conditions other than honorable and furnished an Under 
Other Than Honorable Discharge Certificate
*	he acknowledged he understood that if the discharge request was approved, 
he could be deprived of many or all Army benefits, that he could be ineligible 
for many or all benefits administered by the Veterans Administration (VA), 
and that he could be deprived of his rights and benefits as a veteran under 
both Federal and State law
*	he stated "under no circumstances do I desire further rehabilitation for I have 
no desire to perform further military service"
*	he did not elect to submit a statement in his own behalf 

	e.  On 19 July 1983, his immediate commander recommended approval and stated 
the applicant’s conduct has rendered him triable by court-martial under circumstances 
which could lead to a bad conduct or dishonorable discharge. Based on his previous 
record, punishment can be expected to have a minimal rehabilitative effect. The 
commander believed a discharge at this time to be in the best interest of all concerned. 
There does not appear to be any reasonable ground to believe that the individual is, or 
was, at the time of his misconduct, mentally defective, deranged, or abnormal.

	f.  On 27 July 1983, the separation authority approved the applicant's request for 
discharge under the provisions of AR 635-200, chapter 10, for the good of the service - 
in lieu of trial by court-martial and directed that he be reduced to private/E-1 and issued 
an under other than honorable conditions discharge. The applicant was accordingly 
discharged on 15 August 1983. 

	g.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active 
Duty) shows he was discharged in accordance with chapter 10 (in lieu of trial by court-
martial) of AR 635-200 with an under other than honorable conditions characterization 
of service (Separation Code KFS, Reentry Codes 3/3B) He completed 8 months and 14 
days of active service. His DD Form 214 also shows:

*	he had lost time from 7 April 1983 to 7 June 1983
*	he had excess leave from 17 June 1983 to 15 August 1983

	h.  There is no indication he petitioned the Army Discharge Review Board for review 
of his discharge within that board’s 15-year statute of limitations. 

	i.  On 9 May 2019, the Board denied his request for an upgrade. After review of the 
application and all evidence, the Board determined there is insufficient evidence to grant 
relief. The Board applied Office of the Secretary of Defense standards of liberal 
consideration and clemency to the complete evidentiary record, including the applicant's 
statement and did not find any evidence of error, injustice, or inequity; the applicant had 
limited creditable service, no wartime service and insufficient evidence of mitigating 
circumstances for the misconduct. The Board found limited evidence of remorse or 
post-service honorable conduct that might have mitigated the discharge 
characterization. The Board agreed that the applicant's discharge characterization is 
appropriate.

	j.  On 12 April 2022, the Board reconsidered his request for an upgrade and again 
denied his request. 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, the 
applicant's record of service, the frequency and nature of the applicant's misconduct 
and the reason for separation. The applicant was charged with 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 AR 
635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of 
trial by court-martial. The applicant provided insufficient evidence of post-service 
achievements to support a clemency determination. After reviewing the application and 
all supporting documents, the Board found that relief was not warranted. Based on a 
preponderance of evidence, the Board determined that the applicant’s character of 
service was not in error or unjust.

4.  By regulation (AR 635-200), Chapter 10: A member who has committed an offense 
or offenses for which the authorized punishment includes a punitive discharge may, 
submit a request for discharge for the good of the service in lieu of trial by court-martial. 
The request may be submitted at any time after charges have been preferred and must 
include the individual's admission of guilt. A discharge under other than honorable 
conditions is normally considered appropriate.

5.  In reaching its determination, the Board can consider the applicant’s petition and his 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

BOARD DISCUSSION:

1.  The applicant's request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision. As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.

2.  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 charged with commission of an 
offense punishable under the UCMJ with a punitive discharge. After being charged, he 
consulted with counsel and 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. The Board found no evidence of remorse or post-service honorable 
conduct that might have mitigated the discharge characterization. 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 to amend the decision of the ABCMR set forth in Dockets Number 
AR20180014952, on 9 May 2019 and AR20210016617, on 12 April 2022.

	 
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 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a 
member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may submit a request for discharge for the 
good of the service in lieu of trial by court-martial.  The request may be submitted at any 
time after charges have been preferred and must include the individual's admission of 
guilt.  Although an honorable or general discharge is authorized, a discharge under 
other than honorable conditions is normally considered appropriate.

	a.  Paragraph 3-7a states 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 states 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.  

2.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (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.  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.  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.

3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR.  
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

	a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application.  The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions.  Additionally, applicants do not have a right to a hearing before the ABCMR.  
The Director or the ABCMR may grant a formal hearing whenever justice requires.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220005750


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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