ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:    BOARD DATE: 15 March 2022 DOCKET NUMBER: AR20210012407 
APPLICANT REQUESTS: Reconsideration of his previous requests to upgrade his discharge under other than honorable conditions to general, under honorable conditions. 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) . DD Form 214 (Certificate of Release or Discharge from Active Duty) 
FACTS: 
1. 
Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC93-06710 on 13 October 1993 and AR20040007996 on 12 July 2005. 

2. 
The applicant states the brigade commander personally informed him that his company commander wanted him out of the Army and he was advised to resign. The Defense Judge Advocate also advised him to resign, therefore, he assumed that he had no chance of beating the court-martial. He was treated wrong.  His career was ended due to an officer not wanting him to have the career as an officer in the United States Army that he always dreamed of having. He completed the Reserve Officer Training Corps (ROTC) [program], air borne training, and a bachelor’s degree, while planning to serve his country as an officer. The character of service he received is unjust and he is requesting an upgraded of his under other than honorable conditions character of service to general, under honorable conditions. 

3. 
On 9 August 1980, he was commissioned in the Army Reserve and he was ordered to active duty on 20 September 1980, in the rank of second lieutenant/pay grade O-1, for 3 years.  Upon completion of the infantry officer basic course, he was awarded primary specialty 11B (Infantry Officer).  On 20 March 1982, he was advanced to the rank of first lieutenant/pay grade O-2. 

4. 
A Charge Sheet, dated 19 January 1983, shows court-martial charges were preferred against the applicant for: 


. disobeying a lawful command given by a major, a commissioned officer, to give a urine sample in conjunction with a command-directed urinalysis on 6 December 1982 
. making a false official statement with intent to deceive by stating he had given a urine sample, on 6 December 1982 . conduct unbecoming an officer and gentleman by wrongfully soliciting another officer to provide a urine specimen in his name on 6 December 1982 
5. 
On 11 April 1983, the applicant voluntarily submitted his request for resignation from the Army for the good of the service under the provisions of Chapter 5, Army Regulation (AR) 635-120.  He indicated that he did not desire to appear before a court-martial or a board of officers.  He acknowledged that he was not subjected to coercion with respect to his resignation and was advised of and fully understood the implications of his actions. 

6. 
He provided a “Rebuttal of Resignation Packet,” undated, in which he addressed the adverse comments that were made against him.  He indicated the comments made by his chain of command were false, the officers making the comments against him had a 


“personal hatred” for him and their actions were racially motivated. 
7. 
An undated, memorandum, shows he requested that his service be characterized as no less than honorable. 

8. 
On 13 April 1983, both the applicant’s immediate and intermediate commanders recommended approval of the applicant’s request for resignation with an under than honorable conditions discharge. 

9. 
On 13 April 1983, the Commander, 2nd Brigade, 7th Infantry Division, Fort Ord, CA, recommended acceptance or the applicant’s resignation with an under other than honorable conditions discharge. The commander stated the applicant’s duty performance had been unsatisfactory and he had demonstrated a complete lack of moral fiber.  While in Germany on “REFORGER 81,” it was reported that the applicant told his company commander he was going on a border tour with his platoon. It was later determined that he went to Frankfurt on a pleasure trip. As a result he received a letter of reprimand from the battalion commander.  Additionally, the commander stated: 


a. 
In June 1982, he was involved in a lack of integrity, while testing for the Expert Infantryman Badge, he failed to participate in several of the station tests. Yet he entered scores for those tests.  A thorough investigation was conducted. The noncommissioned officer who administered the test verified the applicant had not participated in some of the events. According to the applicant he completed it.  As a result of this incident, he received a verbal reprimand from the battalion commander. 

b. 
Most recently, he was wearing a Parachutist Badge he was not authorized.  An Officer Record Brief, verified the Parachutist Badge was deleted from his record in 1982. 


10. On 15 April 1983, the Commanding General, 7th Infantry Division, Fort Ord, CA, 
recommended approval of the applicant’s resignation with an under than honorable 
conditions discharge. The applicant was currently under investigation by civil authorities for various offenses that occurred on 10 April 1983. The disposition of those charges are not available. 
11. 
On 18 May 1983, the Deputy Assistant Secretary of the Army (DA Review Boards and Personnel Security) accepted the applicant's resignation and approved his under other than honorable conditions discharge. 

12. 
Accordingly, on 31 May 1983, he was discharged in pay grade O-2.  His DD Form 214 shows he completed 2 years, 8 months, and 12 days of net active service this period.  His DD Form 214 also shows in: 


. Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized, the Sharpshooter Marksmanship Qualification Badge (M-16) Rifle and Expert Marksman Marksmanship Qualification Badge Hand Grenade 
. Character of Service, “Under Conditions Other Than Honorable” . Separation Authority, Chapter 5, AR 635-120, “DA Message 2018052Z May 83” . Separation Code, “DFS” . Reenlistment Code, “NA” . Narrative Reason for Separation, “Conduct Triable by Court-Martial” 
13. 
On 22 January 1990, the Army Discharge Review Board denied his petition to upgrade his discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice and the overall merits of the case were insufficient as a basis for correction of his records. 

14. 
Army Regulation 635-120, then in effect, set the established policy and set the policy for officer resignations and discharges.  Chapter 5, in pertinent part, provided for the resignation for the good of the service of an officer when court-martial charges had been preferred against him.  A resignation for the good of the service, when approved in Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions. 

15. 
The applicant contends several members of his chain of command wanted him out of the Army and advised him to resign. The Defense Judge Advocate also advised him to resign. He assumed that he had no chance of beating the court-martial and he 

resigned.  He believes he was treated wrong, the character of service he received is unjust, and he is requesting an upgraded of his under other than honorable conditions character of service to general, under honorable conditions. 

16. 
The available evidence supports the applicant was not coerced into resigning. He had full knowledge of the consequences of submitting a resignation. Rather than facing the consequences of a trial by court-martial he voluntarily, willingly, and in writing, requested resignation from the Army. He could have continued with court-martial proceedings where his innocence could have been established if he felt so. 

17. 
All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

18. 
In reaching its determination, the Board can consider the applicant’s petition and his 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 applicants 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 Board did not find evidence of in-service mitigating factors and the applicant provided insufficient evidence of post-service achievements to support a clemency determination. Based on a preponderance of evidence, the Board found that the applicant's discharge was not in error or unjust and that relief was not warranted based upon guidance for consideration of discharge upgrade requests. 
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. 
X 
CHAIRPERSON 
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 635-120 (Officer Resignations and Discharges) implements the statutory provisions of Title 10 United States Code governing officer separations and provides policies and procedures for separating officer from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in AR 635-100, paragraph 5-11 a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of AR 635-100. The regulation provides that a resignation for the good of the service, when approved at Headquarters Department of the Army, is normally accepted as being under other than honorable conditions. 

2.  
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/NRs) 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 based on 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. 


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