IN THE CASE OF: 

		BOARD DATE: 11 April 2023

		DOCKET NUMBER: AR20220008957


APPLICANT REQUESTS:  His under other than honorable conditions (UOTHC) 
discharge be upgraded to under honorable conditions (general).

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 
(USC), 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 is requesting an upgrade in order to obtain Department of 
Veterans Affairs benefits.

3.  The applicant enlisted in the Regular Army on 19 June 1986 for 4 years. He 
completed training and awarded military occupational specialty 16P (Chaparral 
Crewman).

4.  The applicant accepted nonjudicial punishment on 11 May 1987, under the 
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failure to go 
at the time prescribed to his appointed place of duty on 25 March 1987, using wrongful 
provoking words towards a fellow Soldier on or about 7 April 1987, and for with intent to 
defraud wrongfully and unlawfully make five checks totaling $1,800.00, then knowing he 
would not have sufficient funds. His punishment included reduction to E-1, 45 days of 
extra duty, and restriction for 45 days.

5.  Court-martial charges were preferred against the applicant for violations of the 
UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review.

6.  The available record is void of the associated court-martial order. However, Special 
Court-Martial Order Number 1, issued by Headquarters, 7th Infantry Division (Light) and 
Fort Ord, Fort Ord, CA on 12 January 1989, shows:

	a.  Special Court-Martial Order Number 10, issued by Headquarters, 32nd Army Air 
Defense Command, Federal Republic of Germany on 27 June 1988 found the applicant 
guilty of charge(s) on 9 May 1988 with an adjudged sentence of confinement for two 
months, forfeiture of $447.00 pay for two months, a fine of $1000.00, reduction to E-1, 
and to be separated from service with a bad conduct discharge.

	b.  Article 71(c) having been complied with and the sentence to confinement having 
been served, the bad conduct discharge was directed to be executed. 

7.  The applicant was discharged on 20 October 1989/ 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), Chapter 10, for the 
good of the service - in lieu of trial by court-martial in the grade of E-1. He was credited 
with 3 years, 2 months, and 13 days of net active service with 431 days of excess leave 
and 50 days of lost time. His character of service is shown as UOTHC. His awards are 
listed as the Army Service Ribbon and the Marksman Qualification Badge with Rifle bar.

8.  The applicant has provided no evidence of a legal name change.

9.  By regulation, a service member may request separation under Chapter 10 after 
court-martial charges are preferred against the Soldier or, where required, after referral, 
for final action by the court-martial convening authority. However, the available records 
do not contain a request for discharge under Chapter 10, in lieu of court-martial.

10.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, USC, Section 1552, the authority under 
which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it 
is only empowered to change the severity of the sentence imposed in the court-martial 
process and then only if clemency is determined to be appropriate. Clemency is an act 
of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

11.  In determining whether to grant relief the Boards can consider the applicant’s 
petition, arguments and assertions, and service record in accordance with the published 
equity, injustice, or clemency guidance.

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 evidence of record shows the applicant was 
convicted by a special court-martial of certain offenses/violations in Germany with an 
adjudged sentence of confinement for two months, forfeiture of pay for two months, a 
fine, reduction to E-1, and to be separated from service with a bad conduct discharge. 
There is also evidence that the appellate review was completed, and the bad conduct 
discharge was directed to be executed. However, there is also evidence that the 
applicant requested to be administratively discharged under chapter 10 with an under 
other than honorable conditions characterization of service rather than have a punitive 
discharge/bad conduct discharge. It also appears the convening authority approved his 
administrative discharge. He was discharged on 20 October 1989, under chapter 10 of 
AR 635-200, in lieu of trial by court-martial. 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, USC, 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. A characterization of under 
honorable conditions may be issued only when the reason for the Soldier’s separation 
specifically allows such characterization.

	c.  Chapter 3 provides guidance on the appropriate type of discharge and 
characterization of service. It states:

		(1)  A Soldier will be given a BCD pursuant only to an approved sentence of a 
general or special court-martial.  The appellate review must be completed, and the 
affirmed sentence ordered duly executed.

		(2)  Soldiers under sentence to an unsuspended dishonorable or bad conduct 
discharge will not be discharged before appellate review is completed, unless so 
directed by Headquarters, Department of the Army. 

	d.  Chapter 10 provided, in pertinent part, 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 may be submitted at any time after charges had been preferred 
until final action by the court-martial convening authority.

	e.  Whether proceedings will be held in abeyance pending final action on a 
discharge request per this chapter is a matter to be determined by the commander 
exercising general court-martial jurisdiction over the individual concerned. If disciplinary 
proceedings are not held in abeyance, the general court-martial convening authority 
may approve the Soldier's request for discharge in lieu of trial by court-martial after the 
Soldier has been tried. In this event, the officer who convened the court in his/her action 
on the case should not approve any punitive discharge adjudged. The officer should 
approve only so much of any adjudged sentence to confinement at hard labor or hard 
labor without confinement as has been served at the time of the action

3.  The Under Secretary of Defense for Personnel and Readiness issued guidance to 
Military Discharge Review Boards and 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.)	AR20220008957


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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