IN THE CASE OF: 

		BOARD DATE: 16 February 2023

		DOCKET NUMBER: AR20220007346


APPLICANT REQUESTS:  upgrade of his under other than honorable conditions 
(UOTHC) discharge to an under honorable conditions (general) discharge. Additionally, 
he desires a personal appearance before the Board via video/telephone.

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

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

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 decided at the time it was best to be with his wife and 
newborn son. His son was under some severe health conditions, and he needed to be 
with him.

3.  The applicant enlisted in the Regular Army on 23 September 1970, for a 3-year term 
of service. He was awarded military occupational specialty 76Y (Supply Specialist).

4.  The applicant while still in a training status accepted non-judicial punishment, under 
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the 
following dates:

*	4 February 1971, for being absent without leave (AWOL), from on or about 
3 January 1971 to on or about 5 January 1971 and, from on or about 
8 January 1971 to on or about 1 February 1971
*	28 May 1971, for being AWOL, from on or about 17 May 1971 to on or about 
18 May 1971; his punishment included reduction to E-2
5.  The applicant served in the Republic of Germany from 15 January 1972 through 
24 July 1972.

6.  The applicant again accepted non-judicial punishment, under the provisions of Article 
15 of the UCMJ, on 9 March 1972, for without authority fail to go at the time prescribed 
to his place of duty, on or about 2 March 1972.

7.  On 24 March 1972 the applicant requested early separation from the Army. In a 
personal statement he stated:

	a.  He was guaranteed the 76W (Petroleum Storage Specialist) military occupation 
specialty (MOS) school and his contract noted that he was allotted a school quota. 
When he arrived Fort Lee for advanced individual training, he was informed that the 
76W MOS school was at capacity. He was then transferred for on-the-job training as a 
supply specialist. He never attended training for petroleum storage specialist.

	b.  He was home on an authorized leave an endured transportation issued which 
caused him to be AWOL on or about 1 May 1971. He received a compassionate 
reassignment and was awarded MOS 76Y and never received the MOS he enlisted for. 
His Commander recommended approval of his request on 27 March 1972.

8.  Court-martial charges were preferred against the applicant on 5 December 1972 for 
violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with 
being AWOL from on or about 17 September 1972 to on or about 9 November 1972.

9.  A report of mental status evaluation, dated 13 November 1972 shows the applicant 
was mentally responsible and had the capacity to understand and participate in board 
proceedings.

10.  On 17 November 1972, after consulting with 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, he verified no one had subjected him to coercion, 
and that counsel had advised him of the implications of his request. He further 
acknowledged he was guilty of the charge. He acknowledged and understood should 
his request be accepted; he would receive an UOTHC discharge. He elected to submit 
a statement, in which he stated he never attended advanced individual training and he 
had hardships at home and could not resolve them while in the Army.

11.  The applicant's commander on 8 December 1972 recommended approval of his 
discharge request, in lieu of trial by court-martial and recommended he receive an 
undesirable discharge.

12.  The separation authority approved the applicant's request for discharge in lieu of 
trial by court-martial on 11 December 1972. He directed the issuance of a 
DD Form 258A (Undesirable Discharge Certificate) and reduction to the lowest enlisted 
grade.

13.  The applicant was discharged on14 December 1972. His DD Form 214 confirms he 
was discharged under the provisions of Army Regulation 635-200, Chapter 10, with 
Separation Program Designator code 246 (for the good of the service). He was 
discharged in the lowest enlisted grade and his service was characterized as UOTHC. 
He was credited with 2 years and 4 days of net active service this period and had 79 
days of lost time.

14.  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.

15.  Published guidance to the Boards for Correction of Military/Navy 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:

1.  The Board found the available evidence sufficient to consider this case fully and 
fairly without a personal appearance by the applicant.

2.  The Board carefully considered the applicant's request, evidence in the records, and 
published Department of Defense 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 
and 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 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 3 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 3-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  Army Regulation 15-185 prescribes the policies and procedures for correction of 
military records by the Secretary of the Army, acting through the ABCMR. prescribes 
the policies and procedures for correction of military records by the Secretary of the 
Army, acting through the ABCMR. The regulation provides that the ABCMR begins its 
consideration of each case with the presumption of administrative regularity. The 
applicant has the burden of proving an error or injustice by a preponderance of the 
evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a 
hearing. 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.

3.  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, an UOTHC discharge was normally considered appropriate.

4.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Service Discharge Review Boards and Service BCM/NRs on 25 July 2018, 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 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)	AR20220007346


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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