IN THE CASE OF: 
 
  BOARD DATE: 22 August 2023 
 
  DOCKET NUMBER: AR20230001124 
 
 
APPLICANT REQUESTS: an upgrade of his service characterization from under other than honorable conditions to honorable. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) 

• Standard Form 89 (Report of Medical Examination) 

• DD Form 214 (Certificate of Release or Discharge from Active Duty) 


 
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 disputes his discharge type because his DD Form 214 doesn't give a clear explanation of why he was discharged. His service in the Army was honest. He was never accused of any wrongdoing to his knowledge, as reflected in his records. 
 
3.  He provided his Standard Form 89 showing he underwent a medical examination on 25 July 1980 and was found qualified for enlistment in the Regular Army. 
 
4.  He enlisted in the Regular Army on 28 July 1980. 
 
5.  On 31 August 1983, court-martial charges were preferred against him for the following charges and specifications: 
 
 a.  Charge I: violation of Article 92 (Failure to Obey Order or Regulation), Uniform Code of Military Justice (UCMJ): 
 
  (1)  specification 1, for failing to present valid bona fide information or documentation showing continued possession or lawful disposition of controlled duty-free items on or about 2 May 1983, to wit: 
 
• 2 music systems 

• 6 speaker sets 

• 1 color television 

• 2 video tape recorders 

• 33 video tapes 

• 5 cassette players 

• 7 cameras 

• 1 slide projector 

• 2 electric typewriters 

• 4 sewing machines 

• 1 toaster oven 

• 1 bicycle 

• 1 furniture set 


 
  (2)  specification 2, for failing to present valid bona fide information or documentation showing continued possession or lawful disposition of repetitive purchases of the same or substantially the same duty-free items costing more than $35.00 on or about 2 May 1983, to wit: 
 
• 6 color televisions 

• 11 radio cassette players 

• 2 cassette players 


 
  (3)  specification 3, for purchasing controlled items in excess of the prescribed limit at various retail outlets in the Republic of Korea during the period November 1982 to March 1983, to wit: 
 
• 2 music systems when authorized 1 

• 7 color televisions when authorized 1 

• 2 video tape recorders when authorized 1 

• 11 radio cassette players when authorized 1 

• 2 electric typewriters when authorized 1 


 
  (4)  specification 4, for purchasing a controlled item in excess of the prescribed limits during the months of May and June 1983, to wit: instant coffee; 
 
 b.  Charge II: violation of Article 81 (Conspiracy), UCMJ: 
 
  (1)  specification 1, for conspiring with Staff Sergeant (SSG) B____ D____ to commit an offense under the UCMJ on or before 28 June 1983, to wit: providing SSG B____ D____ with U.S. currency to purchase a radio cassette player and a set of stereo speakers; 
 
  (2)  specification 2, for conspiring with SSG B____ D____ to commit an offense under the UCMJ on or about 30 June 1983, to wit: providing SSG B____ D____ with U.S. currency to purchase two color televisions; and 
 
 c.  Charge III: violation of Article 107 (False Official Statements), UCMJ, for making an official statement to Military Police Investigator J____ C____ with intent to deceive on or about 2 May 1983 and was then known by him to be false, to wit: that he possessed bona fide receipts for Insured Mail and a Receipt for Certified Mail which documented that he had lawfully disposed of one radio, two sewing machines, and one camera, which statement was false in that the pertinent receipts presented were not bona fide. 
 
6.  On 31 August 1983, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 
 
 a.  He acknowledged that he made the request of his own free will and was not coerced by any person. He acknowledged his understanding that by requesting discharge, he was admitting guilt to the charges against him or of a lesser-included offense that authorized the imposition of a bad conduct or dishonorable discharge. 
 
 b.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran's Administration (known as the Department of Veterans Affairs), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions. 
 
 c.  He elected not to submit statements in his own behalf. 
 
7.  On 14 September 1983, the separation approval authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with characterization of his service as under other than honorable conditions. He further directed the applicant's reduction to the rank/grade of private/E-1 prior to separation. 
 
8.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 on 1 October 1983 under the provisions of Army Regulation 635-200, chapter 10. He completed 3 years, 2 months, and 4 days of net active service during this period. His service was characterized as under other than honorable conditions. He was awarded or authorized the: 
 
• Army Achievement Medal 

• Army Service Ribbon 

• Overseas Service Ribbon 


 
9.  His records contain a letter from the U.S. Army Reserve Personnel Center, 12 January 1989, informing him that the Army Discharge Review Board determined he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge. 
 
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 offenses 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. 
 
  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 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is 
not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), 1 October 1982 and in effect at the time, set forth the basic authority for the separation of enlisted personnel. 
 
 a.  Chapter 10 provided that a member who committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service in lieu of trial by court-martial. The discharge request may be submitted after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in processing the charges until final action on the case by the court-martial convening authority. Commanders will ensure that a member is not coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable amount of time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that he or she was counseled, understood his or her rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a member who was discharged for the good of the service; however, the discharge authority could direct an honorable or general discharge if such were merited by the member's overall record during the current enlistment. 
 
 b.  An honorable discharge is a separation with honor. Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. 
 
 c.  A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 d.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and for the good of the service. 
 
 e.  When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 
 
4.  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 regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority. 
 
 a.  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//