IN THE CASE OF: 

		BOARD DATE: 29 November 2023

		DOCKET NUMBER: AR20230004349


APPLICANT REQUESTS: an upgrade of his under other than honorable conditions 
(UOTHC) characterization of service to honorable

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:
DD Form 149 (Application for Correction of Military Record).

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 would like the Board to grant him relief because he is 
innocent of the charges brought against him. He took advice from his military lawyer 
and was told his discharge characterization would automatically be upgraded.

3.  The applicant enlisted in the Regular Army on 29 November 1979. The highest 
rank/grade he held was private first class /E-3.

4.  On 27 May 1980, he accepted non-judicial punishment under Article 15, of the 
Uniform Code of Military Justice (UCMJ), for on or about 7 May 1980, absenting himself 
from his unit and did remain so absent until on or about 17 May 1980. His punishment 
was forfeiture of $100.00 pay and 7 days in a correctional custody facility.

5.  On 9 September 1981, court-martial charges were preferred against the applicant. 
The DD Form 458 (Charge Sheet) shows he was charged with:

*	two specifications of wrongfully transferring and selling 39.74 grams, more or 
less, of marijuana on or about 10 April 1981
*	two specifications of wrongfully transferring and selling 96.81 grams, more or 
less, of marijuana on or about 13 May 1981
*	three specifications of wrongfully possessing, transferring, and selling 94.90 
grams, more or less, of marijuana on or about 8 July 1981.
6.  The applicant consulted with legal counsel on 21 October 1981.

	a.  He was advised of the basis for the contemplated trial by court-martial, the 
maximum permissible punishment authorized under the UCMJ, the possible effects of a 
UOTHC discharge, and the procedures and rights that were available to him.

	b.  Subsequent to receiving legal counsel, the applicant voluntarily requested 
discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations 
– Enlisted Personnel), Chapter 10, for the good of the service. In his request for 
discharge, he acknowledged his understanding that by requesting discharge, he was 
admitting guilt to the charge against him, or of a lesser included offense that also 
authorized the imposition of a bad conduct or dishonorable discharge. He further 
acknowledged he understood that if his discharge request was approved, he could be 
deprived of many or all Army benefits, he could be ineligible for many or all benefits 
administered by the Veterans Administration, and he could be deprived of his rights and 
benefits as a veteran under both Federal and State laws.

	c.  He was advised he could submit any statements he desired in his behalf. He 
elected not to submit a statement in his own behalf.

7.  On 21 and 22 October 1981, the immediate and intermediate commanders 
recommended approval of the applicant's request for discharge and the issuance of a 
discharge UOTHC.

8.  On 23 October 1981, the separation authority approved the applicant's request for 
discharge under the provisions of AR 635-200, Chapter 10, and ordered the issuance of 
an UOTHC discharge and the applicant's reduction to private/E-1.

9.  On 16 November 1981, the applicant underwent a complete mental status evaluation 
as part of his consideration for discharge due to his misconduct. His mental status 
evaluation noted, he met retention requirements, he was mentally responsible and had 
the mental capacity to understand and participate in the proceedings.

10.  A DA Form 4187 show, effective 19 November 1981, the applicant’s unit reported 
him absent without leave.

11.  The applicant was discharged on 27 November 1981, under the provisions of 
AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, with 
an UOTHC characterization of service in the grade of E-1. He received a Separation 
Code of “JFS” and a reenlistment code “3” and “3B.” His DD Form 214 contains the 
following entries of information:

	a.  He completed 1 year, 11 months, and 10 days of net active service during the 
period covered.

	b.  Block 29 (Dates of Time Lost During This Period) shows lost time from:

*	7 May 1980 to 16 May 1980
*	19 November 1981 to 27 November 1981

12.  On 29 September 1988, the applicant applied to the Army Discharge Review Board 
(ADRB) for an upgrade of his discharge. The ADRB found his discharge to be both 
proper and equitable under the circumstances and voted to deny his request on 
30 May 1989.

13.  Regulatory guidance in effect at the time provided discharges under the provision of 
AR 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in 
lieu of a trial by court-martial.

14.  The Board should consider the applicant’s argument and evidence, along with the 
overall record, in accordance with the published equity, injustice, or clemency 
determination 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 serious misconduct to weigh a clemency 
determination. The Board noted, the applicant provided insufficient evidence of post-
service achievements or character letters of support to attest to his honorable conduct 
that might have mitigated the discharge characterization.

2.  The Board found the applicant’s service record exhibits numerous instances of 
misconduct during his enlistment period of 1 year, 11 months, and 10 days of net active 
service during the period covered. Furthermore, the Board determined 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.
?
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 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) 635-200, in effect at the time, set forth the primary authority 
for separating enlisted personnel. 

	a.  Chapter 10 states in part, a member who has committed an offense or offenses, 
the punishment for any of which, under the Uniform Code of Military Justice (UCMJ) and 
the Manual for Court-Martial, include bad conduct or dishonorable discharge, may 
submit a request for discharge in lieu of trial by court-martial. In addition, the request for 
discharge may be submitted at any stage in the processing of the charges until the 
court-martial convening authority's final action on the case. Commanders will also 
ensure that a member will not be coerced into submitting a request for discharge in lieu 
of trial by court-martial. The member will be given a reasonable time (not less than 72 
hours) to consult with a consulting counsel and to consider the wisdom of submitting 
such a request for discharge. 

	b.  An honorable discharge is a separation with honor. The issuance of an honorable 
discharge certificate 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. Where a member has served faithfully and performed to the best of his 
ability, and there is no derogatory information in his military record, he should be 
furnished an honorable discharge certificate.

	c.  An under honorable conditions (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.  An under other than honorable discharge is an administrative separation from the 
service under conditions other than honorable. It may be issued for misconduct and in 
lieu of trail by court-martial.

3.  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 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//
ABCMR Record of Proceedings (cont)	AR20230004349


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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