IN THE CASE OF: 

		BOARD DATE: 30 June 2023

		DOCKET NUMBER: AR20230000088


APPLICANT REQUESTS: upgrade of his under other than honorable conditions 
(UOTHC) 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 would like a copy of his medical records, honorable 
discharge, and military records.

3.  The applicant enlisted in Regular Army on 16 June 1982 for four years. His military 
occupational specialty was 62B (Construction Equipment Repairer).

4.  He reenlisted on 4 April 1986 for three years, and served in Germany from 19 June 
1984 through 7 June 1986.

5.  The applicant was absent without leave (AWOL) on 1 August 1988 and dropped 
from the rolls as a deserter on 31 August 1988.

6.  A Military Police Report, dated 31 July 1989, shows the applicant was charged with 
civil arrest-insufficient funds and desertion (apprehended).

7.  He was apprehended on 1 August 1989 and returned to military control at Fort Ord, 
CA. 

8.  Court-martial charges were preferred against the applicant on 10 August 1989 for 
violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge 
Sheet) shows he was charged with AWOL on or about 1 August 1988 and did remain so 
absent until on or about 31 July 1989.

9.  The applicant consulted with legal counsel on 10 August 1989 and was advised of 
the basis for the contemplated trial by court-martial; the maximum permissible 
punishment authorized under the UCMJ; the possible effects of a UOTHC discharge; 
the procedures and rights that were available to him.

	a.  After consulting with legal counsel, the applicant voluntarily requested discharge 
under the provision of Army Regulation 635-200 (Personnel Separations-Enlisted 
Personnel), Chapter 10, for the good of the service. He further 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 and he may expect to encounter substantial 
prejudice in civilian life because of an UOTHC discharge.

	b.  He was advised that he could submit statements in his own behalf.

10.  The applicant’s chain of command recommended approval of his request for 
discharge for the good of the service and recommended the issuance of a discharge 
UOTHC. 

11.  The separation authority approved the applicant's request for discharge in lieu of 
court-martial on 17 November 1989. He directed the applicant's reduction to the lowest 
enlisted grade with the issuance of an UOTHC Discharge Certificate. 

12.  The applicant was discharged on 27 November 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, Chapter 10, for the good of the service-in lieu of 
trial by court-martial. He was issued Separation Code KFS with Reentry Enlistment 
Code RE-3. He completed 6 years, 5 months, and 12 days of net active service. He lost 
time from 1 August 1988 to 31 July 1989. 

13.  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.

14.  In reference to requesting a copy of his medical and military records, the applicant 
may contact the U.S. National Archives and Records Administration to obtain copies of 
his documents.

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


BOARD DISCUSSION:

1.  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 
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 for the misconduct and the applicant provided 
no evidence of post-service achievements or letters of support to weigh a clemency 
determination. Based upon a preponderance of evidence, the Board determined that the 
character of service the applicant received upon separation was not in error or unjust.

2.  One possible outcome was to deny the requested relief based upon the misconduct. 
However, the Board majority agreed the applicant was discharged for misconduct and 
was provided an under other than honorable conditions (UOTHC) characterization of 
service. The Board found the applicant’s service does not meet the criteria for a 
discharge upgrade. However, the Board majority did note that the applicant had a prior 
period of honorable service which is not currently reflected on his DD Form 214. The 
Board recommended partial relief with an amendment to more accurately depict the 
applicant’s period of honorable service.

3.  Prior to closing the case, the Board did note the analyst of record administrative 
notes below, and recommended the correction be completed to more accurately depict 
the military service of the applicant.


?
BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:x	:x	:x	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented sufficient to warrant a partial relief. As 
a result, the Board recommends that all Department of the Army records of the 
individual concerned be corrected by amending his DD Form 214 for the service period 
ending 27 November 1989 to show "Continuous honorable active service 19820616 to 
19860403." 

2.  The Board further determined the evidence presented is insufficient to warrant a 
portion of the requested relief. As a result, the Board recommends denial of so much of 
the application that pertains to any other relief not stated above.
	 
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.


ADMINISTRATIVE NOTE(S):

A review of the applicant's record shows his DD Form 214, for the period ending 27 
November 1989, is missing an important entry. As a result, amend the DD Form 214 by 
adding the following entry in item 18 (Remarks), “SOLDIER HAS COMPLETED FIRST 
FULL TERM OF SERVICE.”
?
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.

	a.  Paragraph 3-7a states 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.  Paragraph 3-7b states 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 10, provided that a member who committed an offense or offenses under 
the UCMJ, for which the authorized punishment included a punitive discharge, could 
submit a request for discharge for the good of the service at any time after court-martial 
charges were preferred.

3.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to 
Service Discharge Review Boards and Service Boards for Correction of Military/Naval 
Records (BCM/NR) 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)	AR20230000088


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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