IN THE CASE OF: 

		BOARD DATE: 24 February 2023

		DOCKET NUMBER: AR20220006893


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

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the 
U.S.), dated 6 April 2022

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 he could use some help. He would like to show his grandkids 
that he volunteered and served. He is now disabled and does not have much for 
someone who worked all his life. 

3.  The applicant enlisted in the Regular Army on 6 February 1986, for 3 years. Upon 
completion of training, he was awarded military occupational specialty 88M (Motor 
Transportation Operator).

4.  On 9 December 1987, the applicant underwent a mental status evaluation. He was 
psychiatrically cleared to understand and participate in board proceedings deemed 
appropriate by the command.

5.  Court-martial charges were preferred against the applicant on 19 January 1988 for 
violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged with:

*	one specification of wrongfully possessing less than one ounce of marijuana on 
or about 11 December 1987
*	one specification of operating a vehicle while drunk on or about 11 December 
1987
6.  The applicant consulted with legal counsel on 20 January 1988 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 bad conduct 
discharge; and the procedures and rights that were available to him.

	a.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge 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. 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 declined to submit statements in his own behalf.

7.  On 21 January 1988, the applicant's immediate commander recommended approval 
of his request for discharge in lieu of court-martial.

8.  Consistent with the chain of command's recommendation, the separation authority 
approved the applicant's request for discharge for the good of the service on 26 January 
1988, and directed his reduction to the lowest enlisted grade and the issuance of a 
DD Form 794A (UOTHC Discharge Certificate).

9.  The applicant was discharged on 3 February 1988. His DD Form 214 (Certificate of 
Release or Discharge from Active Duty) confirms he was discharged under the 
provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu 
of court-martial. He was discharged in the lowest enlisted grade and his service was 
characterized as UOTHC. He completed 1 year, 11 months, and 28 days of net active 
service this period. He was awarded or authorized the Army Service Ribbon, 
Sharpshooter Badge with M-16 Rifle Bar, and Sharpshooter Badge with Hand Grenade 
Bar.

10.  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.

11.  Clemency guidance to Boards for Correction of Military Records/Naval Records 
(BCMR/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.

12.  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 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 and result in an under other than honorable conditions discharge. 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)	AR20220006893


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1