IN THE CASE OF: 

		BOARD DATE: 14 February 2023

		DOCKET NUMBER: AR20220006773


APPLICANT REQUESTS:  Upgrade of his under other than honorable conditions 
(UOTHC) characterization of service to honorable.

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

DD Form 149 (Application for Correction of Military Record)

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 his discharge of "In the Good of Service-In-Lieu of Court-
Martial” was unjust at the time. He was young and immature, and he accepted the 
conditions of the discharge because he did not want to fight it. There was not a court-
martial and hearing to validate his unjust discharge. His military unit was deployed to 
Southwest Asia (Desert Storm) for one year, and during this period he was involved in a 
situation where other military persons were involved in an illegal incident. He was a 
third-party person not involved in their illegal activities but drove them to an apartment 
complex. However, since he was somewhat associated with these other military 
persons, he was unjustly included in the activity and given discharge characterization.

3.  Having had service in the U.S. Army Reserve, the applicant enlisted in the Regular 
Army on 22 January 1988, for four years in pay grade E-2.

4.  The applicant deployed to Southwest Asia from 4 September 1990 to 29 March 
1991.

5.  The applicant's record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing.

6.  The applicant was discharged on 27 December 1991. His DD Form 214 (Certificate 
of Release or Discharge from Active Duty) shows he was discharged 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 
discharged in the lowest enlisted grade and his service was characterized as UOTHC 
(Separation Code KFS, Reentry Code 3). He completed 3 years, 11 months, and 6 days 
of net active service this period. He was awarded or authorized the: Army Good 
Conduct Medal, National Defense Service Medal, Southwest Asia Service Medal with 
two Bronze Service Stars, Army Service Ribbon, Overseas Service Ribbon, Expert 
Marksmanship Rifle (M-16) Badge, Expert Marksmanship (Grenade) Badge, and the 
Driver Badge with Wheeled Bar.

7.  The applicant was charged due to the commission of an offense punishable under 
the Uniform Code of Military Justice 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.

8.  Published guidance to the Boards for Correction of Military Records/Naval Records 
(BCM/NR) 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 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's records are void of the complete facts 
and circumstances surrounding his discharge action. It appears that he was charged 
with the commission of offense(s) punishable under the UCMJ with a punitive 
discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary 
requests for discharge in lieu of trial by court-martial. The applicant is presumed to have 
voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by 
court-martial. In doing so, he would have admitted guilt and waived his opportunity to 
appear before a court-martial. It is also presumed that all requirements of law and 
regulation were met, and the rights of the applicant were fully protected throughout the 
separation process. Further, the applicant's discharge accurately reflects his overall 
record of service. 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, U.S. Code, 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 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 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.

3.  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)	AR20220006773


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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