IN THE CASE OF:

		BOARD DATE: 13 September 2023

		DOCKET NUMBER: AR20230001251


APPLICANT REQUESTS: upgrade of his under other than honorable conditions 
(UOTHC) discharge to honorable. Additionally, he requests a personal appearance 
before the Board.

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 did not provide a statement in support of his request.

3.  The applicant was inducted into the Army of the United States on 19 January 1971. 
His military occupational specialty was 11D (Armor Reconnaissance Specialist). 

4.  The applicant accepted nonjudicial punishment under Article 15 of the Uniform Code 
of Military Justice (UCMJ) on:

*	1 December 1971, for absenting himself from his unit on or about 23 November 
1971 until 30 November 1971; his punishment consisted of forfeiture of $75.00 
per month for one-month, extra duty, and reduction to private/E-2 (suspended)
*	12 April 1972, for absenting himself from his unit on or about 5 April 1972 at 2100 
hours until on or about 5 April 1972 at 2250 hours; his punishment consisted of 
forfeiture of $75.00 for one-month
*	10 May 1972, for failing to obey a lawful general regulation to register his 
privately owned vehicle on or about 1 May 1972; his punishment consisted of 
forfeiture of $35.00 for one month and extra duty

5.  A Statement of Medical Condition shows the applicant underwent a separation 
medical examination on 21 August 1972 and to the best of his knowledge there had 
been no change in his medical condition.

6.  The applicant's record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing; however, Special Orders Number 
266, issued by Headquarters, 1st Infantry Division, Fort Riley, KS on 22 September 
1972, discharged him under the provisions of Army Regulation (AR) 635-200 
(Personnel Separations-Enlisted Personnel), UOTHC, effective on 26 September 1972.

7.  The applicant was discharged on 26 September 1972. His DD Form 214 (Armed 
Forces of the United States Report of Transfer or Discharge) confirms he was 
discharged under the provisions of AR 635-200, Chapter 10, with Separation Program 
Number 246, for the good of the service-in lieu of trial by court-martial. His service was 
characterized as UOTHC. He completed 1 year and 8 months of net active service. He 
had 8 days of lost time.

8.  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, all supporting documents, and the evidence found 
within the military record, the Board found that relief was not warranted. The Board 
carefully considered the applicant's record of service, documents submitted in support 
of the petition and executed a comprehensive and standard review based on law, policy 
and regulation, and published Department of Defense guidance for liberal and clemency 
determinations requests for upgrade of his characterization of service.  Upon review of 
the applicant’s petition and available military records, the Board found insufficient 
evidence of in-service mitigating factors for the misconduct to weigh a clemency 
determination. The Board noted the applicant on three occasions went AWOL. The 
applicant provided no post-service achievements or letters or support that could attest 
to his honorable conduct that might have mitigated the discharge characterization. 

2. The Board determined the applicant’s service record exhibits numerous instances of 
misconduct during his enlistment period for 1 year and 8 months of net active service. 
He had 8 days of lost time. The Board agreed the applicant has not demonstrated by a 
preponderance of evidence an error or injustice warranting the requested relief, 
specifically an upgrade of the under other than honorable conditions (UOTHC) 
discharge to an honorable discharge.  Therefore, the Board denied relief.

3.  The applicant’s request for a personal appearance hearing was carefully considered.  
In this case, the evidence of record was sufficient to render a fair and equitable 
decision.  As a result, a personal appearance hearing is not necessary to serve the 
interest of equity and justice in this case.


BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

DB	PRG	TMC	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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for 
correction of military records by the Secretary of the Army, acting through the ABCMR. 
The ABCMR begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  

     a.  The ABCMR is not an investigative body and decides cases based on the 
evidence that is presented in the military records provided and the independent 
evidence submitted with the application. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence.  

     b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing 
whenever justice requires.

3.  Army Regulation (AR) 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. 

4.  The Under Secretary of Defense for 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)	AR20230001251


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1