IN THE CASE OF:  
 
  BOARD DATE: 19 September 2023 
 
  DOCKET NUMBER: AR20230002208 
 
 
APPLICANT REQUESTS: Reconsideration of his request for an upgrade of his under other than honorable conditions (UOTHC) discharge. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149 (Application for Correction of Military Record) 

• Character reference letters (two) 


 
FACTS: 
 
1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20170008773 on 6 January 2021.  
 
2.  The applicant states he is requesting a change in the characterization of his service in order to be eligible to receive Department of Veterans Affairs benefits. As new evidence in support of his request, he provides two character reference letters. 
 
3.  The applicant's complete military records are not available for review; therefore, this case is being considered based on the documents he provides. 
 
4.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged in the rank/pay grade of private/E-1 on 7 August 1974. The authority for this action was Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. He was assigned Separation Program Designator code "KFS" which indicates the narrative reason for his separation was "In Lieu of trial by Court Martial." He was credited with completion of 1 year, 3 months, and 28 days of net active service this period. He had 1,721 days of time lost under the provisions of Title 10, U.S. Code, Section 972. 
 
5.  On 6 January 2021, after reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade 
requests. The Board considered the applicant's statement, his record of service, and the reason for his separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in-service mitigating factors to overcome any misconduct. The applicant provided no evidence of psychiatric conditions in-service for consideration, 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. 
 
6.  Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In doing so, he would have waived his opportunity to appear before a court-martial and risk a felony conviction. A characterization of UOTHC is authorized and normally considered appropriate. 
 
7.  The applicant provides two character reference letters: 
 
     a.  The Mayor of the Town of F_______, LA, states it is his honor to write a letter on behalf of the applicant. He has known him for over twenty years. He served his country with bravery and honor. He carries himself in a polite, respectable manner, and has been and continues to be a model citizen. 
 
     b.  The Director of the C________ Parish Library, states she has known the applicant for many years. He is a good family man of two grown children who he helped rear to be good adults. Before his illness, he was an employee at the public library. He would tackle any job imaginable. He learned to shelve books, worked at the desk, and knew everyone in the community. He gave all a welcoming smile. He also helped her husband with acres of grass mowing and trimming. He had pride in his work and always did a beautiful job. He is a good person. 
 
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: 
 
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 applicant’s separation packet is not available for review. However, the Board noted that other evidence shows the applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he presumably 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 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. The Board noted the two letters of support he provides in support of a clemency determination. However, his service record reflects an extensive period of lost time (1,721) days). 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 to amend the decision of the ABCMR set forth in Docket Number AR20170008773 on 6 January 2021. 2.   
 
  9/19/2023

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.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 
 
 a.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. 
 
 b.  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. 
 
 c.  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. 
 
 d.  When a Soldier was to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 
 
2.  Title 10, U.S. Code, Section 972 provides that an enlisted member of an armed force who: deserts; is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or is unable for more than one day, as determined by competent authority, to perform his/her duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he/she was enlisted or inducted. 
 
3.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  
 
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 (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, 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//