IN THE CASE OF: 

		BOARD DATE: 11 April 2023

		DOCKET NUMBER: AR20220008659


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

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

DD Form 293 (Application for the Review of 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 was misled by his court appointed counsel to sign the 
Chapter 10. He was also informed that his discharge would be upgraded to a general 
discharge after 6 months, which was another lie. It has been 34-years, and he was a 
20-year-old misguided by counsel. He comes from a military family dating back to the 
revolutionary war, and this is a stain and an embarrassment to himself and his family.

3.  The applicant enlisted in the Regular Army on 31 March 1987, for a 3-year term of 
service. Upon completion of his initial entry training, he was awarded military 
occupational specialty 11B (Infantryman).

4.  The applicant's record contains numerous dishonored check notifications dated 
between 22 July and 29 July 1987, which were sent to his command from the Army Air 
Force Exchange Store.

5.  The applicant was formally counseled on 29 July and 30 July 1987, for his 
performance, self-discipline, attitude, personal appearance and writing bad checks.

6.  The applicant received two notifications dated 5-6 August 1987 from the Bank of 
America for writing three checks without having sufficient funds in his account.
7.  The applicant was formally counseled again on two separate occasions on 
6 August 1987, writing bad checks to Bank of America and Safeway Stores.

8.  The applicant's command received three letters dated between 7 and 11 August 
1987, regarding insufficient funds and or returned checks from the Bank of America, 
Safeway Stores, and Pelican Pizza.

9.  The applicant was formally counseled on 3 September and 10 September 1987, for 
performance, self-discipline, attitude, military appearance, and intent to defraud by 
writing bad checks.

10.  The applicant accepted non-judicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates:

*	10 September 1987, for with intent to defraud and for the procurement of lawful 
currency, utter checks #119, 131, 132, 133, 134, 135, 136, 137, 138, 139, 142, 
143, 144, 151, and 152, between 1 July 1987 and 11 August 1987; his 
punishment included reduction to E-2
*	27 October 1987, for disobeying a lawful order not to drive while his vehicle was 
uninsured, on or about 17 October 1987; his punishment included reduction to 
private/E-1

11.  On 27 October 1987, court-martial charges were preferred against the applicant for 
violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with:

*	wrongful distribution of three individual dosage units of lysergic acid diethylamide 
(LSD), a controlled substance, on or about 1 October 1987
*	wrongfully possession of six individual dosage units of LSD, with intent to 
distribute, on or about 1 October 1987
*	wrongful use of LSD, on or about 1 October 1987
*	wrongfully use of LSD, on at least seven separate occasions between 
14 November 1985 and 30 September 1987

12.  On 30 October 1987, court-martial charges were preferred against the applicant for 
violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with:

*	willfully destroying four barracks windows by launching batteries through the 
windows using a wrist slingshot, on or about 28 October 1987
*	commit an assault upon two Soldiers by launching batteries with projectile force 
likely to produce death or grievous bodily harm, on or about 28 October 1987

13.  On 25 November 1987, 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 acknowledged 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, and was given the option to submit a 
statement in his own behalf. 

14.  The applicant's commander on 17 December 1987 recommended approval of his 
discharge request, in lieu of trial by court-martial and recommended he receive a 
UOTHC discharge.

15.  The separation authority approved the applicant's request for discharge on 
22 December 1987, in lieu of trial by court-martial. He directed the issuance of a 
UOTHC Discharge Certificate and reduction to the lowest enlisted grade.

16.  The applicant was discharged on 7 January 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, with Separation Program 
Designator code KFS (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 was credited with 9 months and 7 days of net active service this period.

17.  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

18.  Published guidance to the Board for Correction of Military/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.

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 offenses 
(possession, use, and intent to sell illegal drugs, assault, and property destruction) 
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 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 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. 

3.  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)	AR20220008659


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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