IN THE CASE OF:  
 
  BOARD DATE:  22August 2023 
 
  DOCKET NUMBER:  AR20230000593 
 
 
APPLICANT REQUESTS:  An 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 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, in effect: 
 
a.  He started drinking in the Army because everyone else was doing it. This became a problem because he would drink too much and get into fights. He served six months in the stockade for being drunk and disorderly and received a special court-martial. He was never sent to drug and alcohol counseling. During MOS (military occupational specialty) training, he was incarcerated for 30 days but was able to return to training. He had to leave the county to get alcohol at Fort Hood, he left post a lot, and went back to San Antonio. He was also sent to the stockade at Fort Hood before being chaptered out. All his misconduct was due to drinking and his behavior was out of control.  
 
b.  He is an alcoholic and the Department of Veterans Affairs (VA) was nice enough to grant him Chapter 17 benefits for treatment. But he would like an upgrade so he can use other benefits and receive compensation to better his life. He cannot keep a job because of his drinking. He cannot go to rehab because he needs money to support his family and cannot do that in rehab. Soldiers today are given a general discharge and they still get disability and compensation. He was not sent to any counseling during his 
time in service. His chain of command ignored him unless he was in trouble. With his UOTHC discharge he will always be taking one step forward and two steps back. 
 
3.  On 26 April 1974, the applicant enlisted in the Regular Army for a 3-year service obligation. 
 
4.  On 8 July 1974, while in training at Fort Polk, LA, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for behaving disrespectfully toward his superior commissioned officer; disobeying a lawful order from his superior warrant officer; and for communicating a threat to his superior noncommissioned officer (NCO), on or about 29 June 1974. His punishment was 30 days in correctional custody and forfeiture of $160 pay.  
 
5.  Before a special court-martial on 16 July 1974, while in training, the applicant was found guilty of violations of the UCMJ. Specifically, for: 
 
• one specification of behaving disrespectfully toward his superior commissioned officer  

• one specification of willfully disobeying a lawful order from his superior commissioned officer 

• one specification of communicating a threat to his superior NCO 

• one specification of being drunk and disorderly, on or about 1 June 1974 


 
The court sentenced him to confinement at hard labor for two months and forfeiture of $100 pay per month for four months. The court recommended to suspend confinement due to his age, he had received bad news from home, he had been drinking, and he had been on restriction for one and a half months. On 23 July 1974 the convening authority approved the sentence and confinement.  
 
6.  Upon completion of confinement, the applicant completed training and was awarded MOS 11E (Armor Crewmember). He was assigned to Fort Hood, TX on 7 January 1975.  
 
7.  On 5 June 1975, he accepted NJP under the provisions of Article 15 for being absent without leave (AWOL) from 19 to 27 May 1975; and from 27 to 29 May 1975. His punishment included reduction to E-2, extra duty for 14 days, and forfeiture of $71 pay.  
 
8.  On 15 August 1975, the applicant accepted NJP under the provisions of Article 15 for being AWOL from 17 to 20 June 1975. His punishment included reduction to E-1, extra duty, and restriction for 14 days and forfeiture of $80 pay for one month.  
 
9.  On 26 January 1976, court-martial charges were preferred against the applicant for violations of the UCMJ. His DD Form 458 (Charge Sheet) shows he was charged with 
being AWOL from on or about 22 September 1975 until 1 November 1975; and from on or about 12 November 1975 until 19 January 1976.  
 
10.  On 4 February 1976, after consulting with 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. In his request, he acknowledged he was making the request of his own free will, that 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 elected not to submit a statement in his own behalf.  
 
11.  On 4 February 1976, the applicant's commander recommended approval of his discharge request and the issuance of an undesirable discharge. He noted, he did not have reasonable grounds to believe the applicant was at the time of his misconduct, mentally defective, deranged, or abnormal. He further noted the applicant’s history of AWOL and NJPs. Subsequently, his chain of command recommended approval of the request.  
 
12.  On 12 February 1976, the applicant underwent a separation examination. The corresponding documentation shows he noted he was in good health and was not taking any medications. The examining physician cleared him for separation.  
 
13.  On 17 February 1976, the separation authority approved the applicant's request for discharge for the good of the service in lieu of court-martial and directed his reduction to the lowest enlisted grade with the issuance of an DD Form 258A (Undesirable Discharge Certificate).  
 
14.  On 19 March 1976, the applicant was discharged. His DD Form 214 (Report of Separation 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]. His service was characterized as UOTHC. He was credited with completing 1 year, 3 months, and 16 days of net active service, with 221 days of lost time.  
 
15.  The available record is void of evidence the applicant requested rehabilitation for alcohol abuse, or was ever referred to the Alcohol and Drug Abuse Prevention and Control Program. 
 
16.  The applicant was charged due to the commission of an offense punishable under the Uniform Code of Military Justice 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.  
17.  On 12 February 1981, the Army Discharge Review Board reviewed his discharge and found it proper and equitable. As such, his petition for an upgrade was denied.  
 
18.  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: 
 
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 insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature 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 
 
xx: xx: xx: 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.2.   
 
  8/22/2023

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, a UOTHC discharge was normally considered appropriate.  
 
3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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//