IN THE CASE OF: 

		BOARD DATE: 2 May 2023

		DOCKET NUMBER: AR20220009187


APPLICANT REQUESTS: upgrade of his under other than honorable conditions 
characterization of service to general, under honorable conditions. 

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 had family issues at the time, and he was told his discharge 
would be upgraded after 6 months. 

3.  The applicant enlisted in the Regular Army on 4 March 1980. He held military 
occupational specialties 13B, Cannon Crewmember. He was assigned to Fort Sill, OK. 

4.  His DA Form 2-1 (Personnel Qualification Record) and DA Forms 4187 (Personnel 
Action) reflect multiple periods of lost time as follows: 

*	10 to 11 September 1980, absent without leave (AWOL)
*	4 May to 4 June 1981, AWOL
*	4 June to 8 June 1981, dropped from the roll as a deserter
*	8 June to 5 July 1981, Confined by military authorities 
*	5 July to 6 July 1981, AWOL
*	6 July 1981 to 17 October 1981, dropped from the roll as a deserter
*	17 October 1981 to 10 September 1985, apprehended by civil authorities and 
Confined by military authorities

5.  On 23 July 1982, court-martial charges were preferred against him for AWOL. His 
DD Form 458 (Charge Sheet) shows he was charged with on specification of AWOL 
from 4 May 1981 until a date to be determined.

6.  On 28 September 1984, new court-martial charges were preferred against him for 
AWOL. His DD Form 458 (Charge Sheet) shows he was charged with on specification 
of AWOL from 5 July 1984 until a date to be determined.

7.  On 16 September 1985, the applicant consulted with legal counsel. He was advised 
of the basis for the contemplated trial by court-martial, the maximum permissible 
punishment authorized under the Uniform Code of Military Justice, the possible effects 
of an under other than honorable conditions discharge, and the procedures and rights 
that were available to him. After receiving legal counsel, the applicant voluntarily 
requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), Chapter 10, in lieu of court-martial. In his request for 
discharge, the applicant stated/acknowledged/understood: 

	a.  He stated he was making this request of his own free will and have not been 
subjected to any coercion whatsoever by any person. He has been advised of the 
implications that are attached to it.

	b.  He acknowledged that by submitting this request for discharge, he understood 
the elements of the offenses charged and that he was guilty of the charges against him 
or of a lesser offense which also authorizes the imposition of a bad conduct or 
dishonorable discharge. 

	c.  He stated that under no circumstances does he desire further rehabilitation, for 
he has no desire to perform further military service.

	d.  He 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.

	e.  He elected not to submit a statement in his own behalf.

8.  The chain of command commander recommended approval of the Request for 
Discharge in Lieu of Trial by Court-Martial and his characterization of service be 
regarded as under other than honorable conditions. The immediate commander opine 
that the applicant is pending a trial for an offense punishable by a Bad Conduct or 
Dishonorable Discharge. The administrative burdens involved in the court-martial and 
possible confinement are not considered warranted in view of the nature of the offense.

9.  On 9 October 1985, the separation authority approved the applicant's request for 
discharge, under the provisions of AR 635-200, Chapter 10, in lieu of court-martial, and 
directed his reduction to the lowest enlisted grade and the issuance of a under other 
than honorable conditions discharge.

10.  The applicant was discharged on 19 November 1985. His DD Form 214 (Certificate 
of Release or Discharge from Active Duty) confirms he was discharged in the lowest 
enlisted grade under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-
martial (Separation Code JFS, Reentry Codes 3/3B/3C) and his service was 
characterized as under other than honorable conditions. His DD Form 214 shows he 
completed 1 year, 5 months, and 6 days of active service, with lost time as follows: 

*	5 July 1984 to 9 September 1985
*	10 September 1980 to 10 September 1980 
*	4 May 1981 to 7 June 1984 

11.  There is no indication he petitioned the Army Discharge Review Board for review of 
his discharge within that board’s 15-year statute of limitations. 

12.  By regulation (AR 635-200), Chapter 10: A member who has committed an offense 
or offenses for which the authorized punishment includes a punitive discharge may, 
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 have been preferred and must 
include the individual's admission of guilt. A discharge under other than honorable 
conditions is normally considered appropriate.

13.  In reaching its determination, the Board can consider the applicant’s petition and 
his service record in accordance with the published equity, injustice, or clemency 
determination guidance.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted. 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 carry an under other than honorable conditions 
characterization of service. 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 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel. Chapter 10 provides that a 
member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may 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 have been preferred and must include the individual's admission of 
guilt.  Although an honorable or general discharge is authorized, a discharge under 
other than honorable conditions is normally considered appropriate.

	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.  

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and Boards for Correction of 
Military/Naval Records (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. 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. 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)	AR20220009187


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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