IN THE CASE OF: 

		BOARD DATE: 14 March 2023

		DOCKET NUMBER: AR20220008004


APPLICANT REQUESTS:  Reconsideration of his prior request for upgrade of his under 
other than honorable conditions (UOTHC) discharge to an honorable discharge.

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

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 214 (Report of Separation from Active Duty)
*	DD Forms 214 (Certificate if Release or Discharge from Active Duty) (two)

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 Docket Number AR20130002567 on 10 October 2013.

2.  As a new argument, the applicant states he was discharged under Chapter 14 with a 
UOTHC, not Chapter 17 with a dishonorable discharge. He was locked up for driving 
under the influence (DUI) and discharged because of his jail time and the DUI.

4.  The applicant enlisted in the Regular Army on 9 November 1973 for 4 years. He 
completed his training and was awarded military occupational specialty 638 (Wheel 
Vehicle Mechanic). On 25 August 1977, he was honorably discharged for immediate 
reenlistment. He reenlisted on 26 August 1977 for 3 years. The highest grade he held 
was E-4.

5.  The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 
15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the 
indicated offenses:

*	16 September 1977, for being absent without leave (AWOL) with intent to avoid 
field exercises, from on or about 1600 hours 7 September 1977 until on or about 
1600 hours 8 September 1977; his punishment included reduction to E-3 
(suspended for 45 days)
*	6 June 1978, failure to go at the time prescribed to his place of duty and on or 
about 3 June 1978, and disobeying a lawful order from a noncommissioned 
officer; his punishment included a reduction to E-3 (suspended for 30 days)
*	25 April 1979, for being AWOL from on or about 0630 hours 3 April 1979 until on 
or about 0630 hours 9 April 1979; his punishment included reduction to E-3
*	28 August 1979, three specifications of failure to go at the time prescribed to his 
place of duty on or about 0630 hours and 0730 hours 6 August 1979, and 0630 
hours 10 August 1979
*	9 October 1979, for failure to go at the time prescribed to his place of duty, at 
0015 hours on 20 September 1979

6.  On 29 October 1979, he pled guilty in civil court to the charge of driving with a 
revoked license (3rd offense) and he was sentenced to 2 years in prison.

7.  The applicant's immediate commander notified the applicant on 10 April 1980, of his 
intent to initiate actions to separate him under Army Regulation 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 14, for misconduct.

8.  The applicant consulted with legal counsel on 11 April 1980. He was advised of the 
basis for the contemplated discharge, the possible effects of an under honorable 
conditions discharge, and the procedures and rights that were available to him. He 
elected to have a personal appearance before a board of officers but not to submit a 
statement in his own behalf.

9.  The applicant's immediate commander formally recommended his separation from 
service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct. 
The commander noted the specific reasons as: the applicant's civil conviction and 
sentence of 2 years in prison, repeated absence from duty, apathetic attitude, and 
substandard duty performance. 

10.  On 30 June 1980, the applicant appeared with counsel before a board of officers. 
The Board found the applicant unfit for further military service and recommended 
separation with a UOTHC discharge.

11.  The appropriate authority approved the recommendation on 22 July 1980. He 
directed the applicant's reduction to the lowest enlisted grade with the issuance of a 
DD Form 794A (UOTHC Discharge Certificate).

12.  The applicant was discharged on 12 September 1980, in the pay grade of E-1. His 
DD Form 214 confirms he was discharged under the provisions of Army Regulation 
635-200, Chapter 14, for misconduct -conviction by civil court, and his service 
characterization was UOTHC. He was credited with 2 years, 5 months, and 10 days of 
net active service this period with 3 years, 9 months, and 13 days of prior active service. 
He is shown to have had 4 periods of lost time totaling 188 days.

13.  On 10 October 2013, the ABCMR denied the applicant's request for an upgrade of 
his service characterization. The Board determined the evidence presented did not 
demonstrate the existence of a probable error or injustice.

14.  Army Regulation 635-200, at the time of the applicant's separation did not include a 
Chapter 17. Chapter 14 established policy and prescribes procedures for separating 
members for misconduct. Specific categories include minor disciplinary infractions, a 
pattern of misconduct, commission of a serious offense (military or civilian offense), and 
convictions by civil authorities. A UOTHC discharge was normally considered 
appropriate.

15.  In determining whether to grant relief Boards for Correction of Military/Navy 
Records (BCM/NR) 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.  

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 discharged from active duty due to 
Misconduct – Civil Conviction. The applicant did not receive a dishonorable discharge 
as he believes. Such characterization can only be imposed by a general court-martial. 
The applicant’s discharge from the Army was administrative, not punitive. He received 
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 to amend the decision of the ABCMR set forth in Docket Number 
AR20130002567 on 10 October 2013.

	 
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 15-185 (ABCMR) sets forth procedures for processing requests for 
the correction of military records. Paragraph 2-15a governs requests for 
reconsideration. This provision of the regulation allows an applicant to request 
reconsideration of an earlier decision of the ABCMR if the decision has not previously 
been reconsidered. The applicant must provide new evidence or argument that was not 
considered at the time of the ABCMR's prior consideration.

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 Soldiers whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 14 established policy and prescribes procedures for separating members 
for misconduct. specific categories include minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense (military or civilian offense), and 
convictions by civil authorities. Action will be taken to separate a member for 
misconduct when it is clearly established that rehabilitation is impracticable or is unlikely 
to succeed. A discharge under other than honorable conditions is normally appropriate 
for a Soldier discharged under this chapter.

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.)	AR20220008004


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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