ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  12 February 2019

	DOCKET NUMBER:  AR20160014959


APPLICANT REQUESTS:  The applicant requests his under other than honorable 
conditions (UOTHC) discharge be upgraded to under honorable conditions (general).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code (USC), section 1552 (b); however, the Army Board for Correction of 
Military Records 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 was new and just coming to Bamberg, Germany.  There was 
a fight between two guys that he did not know but was identified as being there when it 
took place; he left the room before it happened.  Unfortunately, he had no witnesses 
because his roommate was on leave.  For employment purposes he has to provide his 
DD Form 214 which effects his opportunity for hire.

3.  On 20 August 1980, the applicant enlisted in the Regular Army.

4.  On 3 April 1981, he received non-judicial punishment (NJP) for unlawfully committing 
an assault upon another Soldier by cutting him on the left side of the neck with a 
dangerous weapon.

5.  On 16 June 1981, a trial by Special Bad Conduct Discharge (BCD) Court-Martial was 
convened.   He plead guilty and was found guilty of assault.  He was sentenced to be 
confined at hard labor 60 days, to be reduced to the grade of E-1, and to forfeit $200 a 
month for 2 months.  

6.  On 11 September 1981, he received NJP for failing to secure his wall locker.

7.  On 16 September 1981, his commander requested he be discharged under the 
provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative 
Separations) paragraph 14-33 because conduct and efficiency are unsatisfactory.  The 
applicant was sent to Brigade for the purpose of rehabilitation; it was noted he 
possessed the mental and physical ability necessary to be an effective Soldier, however 
his record and his failure to react constructively to the rehabilitation program were 
indicative that he should not be retained in the service.  

8.  On 17 September 1981, the applicant stated that he did not wish to waive his rights 
and wanted his case considered by a board of officers.

9.  On 5 October 1981, the applicant received notification to appear before a Board of 
Officers scheduled for 13 October 1981.

11.  On 13 October 1981, a Summary of Proceedings by a Board of Officers convened.  
The board recommends the applicant be eliminated from the service for misconduct 
with issuance of an UOTHC Discharge Certificate.  However, one member 
recommended suspension of the discharge based solely on the applicant’s satisfactory 
performance while in his training unit and that cadre’s opinion was that he had potential 
for continued service.

12.  On 20 October 1981, the appropriate authority approved the findings and 
recommendation of the Board of Officers.  

13.  On 3 November 1981, the applicant was discharged accordingly.  He completed 11 
months, and 7 days.  

14.  The available evidence shows the applicant was administratively discharged 
according to regulation and contains no indication of administrative or procedural error 
that would have jeopardized his rights.   

15.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published guidance on equity, injustice, 
or clemency.
BOARD DISCUSSION:

JUSTIFICATION:  Based upon the severe nature of the misconduct and the lack of 
mitigating factors for the misconduct, the Board determined relief was not warranted.

?
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.


ADMINISTRATIVE NOTE(S):

Not Applicable

?
REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military 
records must be filed within three years after discovery of the alleged error or injustice.  
This provision of law also allows the Army Board for Correction of Military Records 
(ABCMR) to excuse an applicant's failure to timely file within the three-year statute of 
limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  Army Regulation (AR) 635-206 (Personnel Separations, Discharge, Misconduct 
(Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), 
then in effect, established policy and prescribed procedures for the elimination of 
enlisted personnel for misconduct by reason of fraudulent entry into the service, 
conviction by civil court, and absence without leave or desertion.  Section VI (Conviction 
by Civil Court) prescribed procedures for processing cases of individuals who, during 
their current term of active military service were initially convicted or adjudged juvenile 
offenders.
     a.  Pararaph 33a stated that an individual was considered for discharge when he had 
been initially convicted by civil authorities, or action had been taken against him which 
was tantamount to a finding of guilty, of an offense for which the maximum penalty 
under the Uniform Code of Military Justice (UCMJ) was death or confinement in excess 
of 1 year. 

     b.  Paragraph 34 stated the discharge or recommendation for discharge was not 
accomplished or submitted until the individual had indicated in writing that he did not 
intend to appeal the conviction, or until the time in which an appeal may be made had 
expired, whichever was earlier, or if the appeal had been made, until final action had 
been taken thereon.

     c.  An individual discharged for conviction by a civil court normally was furnished an 
Undesirable Discharge Certificate, however, an honorable or General Discharge 
Certificate could be furnished if the individual being discharged had been awarded a 
personal decoration, or if warranted by the particular circumstances in a given case.

3.  Army Regulation 635-200 sets 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 14 establishes policy and prescribes procedures for separating 
personnel for misconduct because of minor disciplinary infractions, a pattern of 
misconduct, commission of a serious offense, conviction by civil authorities, desertion, 
and absence without leave. 

          (1)  The issuance of a discharge under other than honorable conditions is 
normally considered appropriate for separations under the provisions of 
Chapter 14.  However, the separation authority may direct a general discharge if such is 
merited by the Soldier’s overall record.  Characterization of service as honorable is not 
authorized unless the Soldier’s record is otherwise so meritorious that any other 
characterization clearly would be inappropriate.  A characterization of honorable may be 
approved only by the commander exercising general court-martial jurisdiction, or higher 
authority, unless authority is delegated.

          (2)  Paragraph 14-12b provides for the separation of Soldiers when they have a 
pattern of misconduct involving acts of discreditable involvement with civil or military 
authorities and conduct which is prejudicial to good order and discipline.

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/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.  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, 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.  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.



ABCMR Record of Proceedings (cont)	 AR20160014959
	
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