IN THE CASE OF:  

		BOARD DATE:  4 October 2023

		DOCKET NUMBER:  AR20230002898


APPLICANT REQUESTS:  Reconsideration of his previous request for an upgrade of 
his under other than honorable conditions (UOTHC) discharge to honorable, and an 
appearance before the Board via video/telephone.

APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:

DD Form 149 (Application for Correction of Military Record)

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 AR20220001164 on 17 August 2022.

2.  As a new contention, the applicant states he believes his discharge should be 
upgraded because while stationed at Fort Hood, TX, he was subjected to constant 
discrimination as a black man, from a white commander who hated him. The 
commander would not allow him to take leave.

3.  The applicant enlisted in the Regular Army on 27 June 1974, for a 3-year service 
obligation. His enlistment documents noted his race as “N” indicative of Negro. Upon 
the completion of training and award of military occupational specialty 05E (Voice Radio 
Operator), he was assigned to Fort Hood, TX, and arrived on 17 October 1974.

4.  The applicant accepted non-judicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Military Justice (UCMJ), on the following occasions [it 
should be noted each of these punishments had a different recommending 
commander]:

   a.  On 7 January 1975, for being absent without leave (AWOL) from on or about 
19 December 1974 until 27 December 1974. His punishment included reduction to 
private/E-1 (suspended for 30 days), forfeiture of $80 for one month (suspended for 30 
days), and 14 days extra duty.

   b.  On 24 June 1975, for two specifications of being absent from his place of duty, on 
or about 17 June 1975, and for disobeying a lawful order on or about 23 June 1975. His 
punishment included 14 days extra duty, forfeiture of $80 for one month (suspended for 
60 days), and restriction (suspended for 60 days).

   c.  On 25 September 1975, for absenting himself from his unit on or about 
22 September 1975. His punishment included forfeiture of $30 for one month, 14 days 
extra duty, and 14 days restriction (suspended for 30 days).

5.  On 24 November 1975, the applicant's commander-initiated action to separate him 
under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted 
Personnel), Chapter 5 (Expeditious Discharge Program [EDP]). As the specific reasons, 
the commander noted the applicant's poor attitude, lack of motivation, and lack of self-
discipline.

6.  On 2 December 1975, the applicant consulted counsel, declined the proposed 
discharge, and was retained on active duty.

7.  The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on the 
following occasions:

   a.  On 10 August 1976, for being AWOL from on or about 21 July 1976 until 26 July 
1976. His punishment included forfeiture of $84 for one month and 14 days extra duty.

   b.  On 13 September 1976, for failing to go at the time prescribed to his appointed 
place of duty, on or about 30 August 1976. His punishment included reduction to 
private/E-1, forfeiture of $50 pay, and extra duty for 14 days. He refused to sign the 
form.

   c.  On 29 September 1976, for three specifications of failing to go to his appointed 
place of duty, on or about 1 September 1976 and on or about 16 September 1976, and 
two specifications of absenting himself from his place of duty, on or about 14 September 
1976 and on or about 21 September 1976. His punishment included reduction to 
private/E-1, 30 days extra duty, and forfeiture of $180 pay for two months.

   d.  On 6 December 1976, for being AWOL from on or about 28 October 1976 until on 
or about 29 October 1976; disobeying a lawful order from a commissioned officer, on or 
about 2 November 1976, and breaking restriction on or about 3 November 1976. His 
punishment included forfeiture of $50 (suspended for 30 days) and 14 days extra duty.

8.  The applicant’s record is void of a separation packet containing the specific facts and 
circumstances surrounding his discharge processing.

9.  On 25 May 1977, the applicant was discharged. The available DD Form 214 (Report 
of Separation from Active Duty) does not show the authority and reason for separation. 
His service was characterized as UOTHC, and he was credited with completing 2 years,
9 months, and 28 days of net active service with 31 days of lost time.

10.  The applicant's DA Form 2-1 - Part II (Personnel Qualification Record - Part II) 
indicates he was separated under the provisions of Army Regulation 635-200, 
paragraph 13-5a (1), and he was issued a DD Form 794A (UOTHC Discharge 
Certificate).

11.  On 17 August 2022, the ABCMR considered the applicant’s petition for an upgrade 
of his characterization of discharge. After careful consideration, the Board determined 
his characterization of service was neither in error nor unjust. Accordingly, his request 
for relief was denied.

12.  On 27 March 2023, in the processing of this case, the U.S. Inspector General 
Agency searched their database which revealed no records pertaining to the applicant.

13.  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 noted, the applicant 
provided insufficient evidence of post-service achievements or character letters of 
support that attest to his post honorable conduct that might have mitigated the 
misconduct that resulted in his discharge characterization.  The Board found insufficient 
evidence of in-service mitigating factors for the misconduct to weigh a clemency 
determination.

2. Based on the applicant’s record, the Board determined the applicant had five different 
company and battalion commanders with multiple UCMJ actions for multiple AWOLs 
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 honorable.  The Board agreed 
that a reversal on the previous Board determinations for a discharge upgrade is not 
warranted.  Therefore, relief was denied.

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

:X	:X	:X	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:  

The Board found 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 AR20220001164 on 17 August 2022.


	 
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 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 has the discretion to hold a hearing; applicants do not have a right to 
appear personally before the Board. The Director or the ABCMR may grant formal 
hearings whenever justice requires.

2.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.

   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 13 (Separation for Unfitness and Unsuitability), provided policy and
provides procedures for eliminating enlisted personnel found to be unfit or unsuitable for 
further military service. Paragraph 13-5a, of this version, in effect at the time, provided 
individuals were subject to separation under the provisions of this chapter when one or 
more of the following conditions exist such as frequent incidents of a discreditable 
nature with civil or military authorities.

3.  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)	AR20230002898


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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