ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS



	BOARD DATE:  13 June 2019

	DOCKET NUMBER:  AR20170007625


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions 
discharge.

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 would like his records checked for injustice and corrected in 
some way.  The applicant contends that his discharge should be upgraded because he 
was young and immature when this matter occurred.  He is wiser, found God, and is 
more mature at this point.

3.  A review of the applicant’s service record shows:

	a.  He enlisted in Regular Army on 2 June 1975.

	b.  He served in Hawaii from 2 September 1975 to 3 March 1977.

	c.  He accepted nonjudicial punishment (NJP) on 30 January 1976 for theft.  His 
punishment included reduction to private (PVT)/E-1 (suspended for 60 days).

	d.  He accepted NJP on 1 March 1976, for theft.  Additionally, his suspension of 
punishment for Article 15 received on 30 January 1976 was vacated and the applicant 
was reduced to PVT/E-1.

	e.  Court-martial charges were preferred on the applicant on 23 December 1976.  
His DD Form 458 (Charge Sheet) indicates he was charged with one specification of 
theft of property belonging to another Soldier.
	f.  He consulted with legal counsel on 14 February 1977 and subsequently 
requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10.  In his request, he acknowledged:

*	maximum punishment
*	he was guilty of the charge against him or of a lesser included offense
*	he understood if his discharge was accepted he could be separated with an 
under other than honorable conditions discharge and furnished an Other 
Than Honorable Discharge Certificate
*	he would be deprived of many or all Army benefits and that he may be 
ineligible for benefits by the Veterans Administration and benefits of a Veteran 
under Federal and State law
*	he was advised he could submit any statements he desired in his own behalf
*	his election shows he elected to submit a statement

	g.  In his request for discharge, the applicant stated during his two years of 
assignment at Schofield Barracks, he always tried to perform his duties to the best of 
his abilities while striving to advance in rank and knowledge of his job.  He realized the 
three mistakes made and never was the type to remain constantly in trouble.  He was 
always truthful with his superiors and never one to lie.  It was his belief to reveal the 
truth and accept the consequences.  He also believed that everyone should be given an 
opportunity to prove themselves regardless of what they have done.  Sometimes a 
person commits several mistakes in reaching their maturity.  It was his desire to remain 
in the service for several years and achieve his goal of becoming a nurse.  He believed 
that he could be an asset to his unit and the Army if he remained in the service.  He felt 
a bad conduct discharge would ban him from society and emplace a stigma that an 
individual is incapable of change.  He apologized for his behavior and the events that 
occurred.

	h.  On 23 February 1977, consistent with the chain of command recommendations, 
the separation authority approved the applicant’s request for discharge under the 
provisions of AR 635-200, Chapter 10, for the good of the service in lieu of trial by court-
martial.  The separation authority directed issuance of an Under Other Than Honorable 
Discharge Certificate and reduction to the lowest enlisted grade.

	i.  The applicant was discharged from active duty on 4 March 1977 under the 
provisions of AR 635-200, chapter 10.  His DD Form 214 (Report of Separation from 
Active Duty) shows he completed 1 year, 9 months, and 3 days of active service.  It also 
shows he was awarded or authorized the Sharpshooter Marksmanship Qualification 
Badge with Rifle Bar (M-16).

4.  By regulation, a member who committed an offense or offenses the punishment for 
which includes a bad conduct discharge or dishonorable discharge may submit a 
request for discharge for the good of the service.  An Under Other Than Honorable 
Discharge Certificate normally is appropriate for a member who is discharged for the 
good of the service.

5.  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 
determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, to include the DoD guidance on liberal 
consideration when reviewing discharge upgrade requests, the Board determined there 
is insufficient evidence to grant relief.  One potential outcome discussed was to grant 
the requested relief based upon the misconduct not being severe and the amount of 
time that has passed.  However, based upon the multiple occasions of theft from other 
Soldiers in the record, as well as a lack of character evidence submitted by the 
applicant to show that he has learned and grown from those events, the Board 
concluded that the characterization of service received at the time of discharge was 
appropriate.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:x	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: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, 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) 635-200 (Personnel Separations – Enlisted Personnel) in 
effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a 
separation with honor.  The honorable characterization is appropriate when the quality 
of the member’s service general 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.  Paragraph 3-7b (General Discharge) states that 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 10 of that regulation provides, in pertinent part, that a member who has 
committed an offense or offenses for which the authorized punishment includes a 
punitive discharge may, submit a request for discharge for the good of the service in 
lieu of trial by court martial.  The request may be submitted at any time after charges 
have been preferred and must include the individual’s admission of guilt.  Although an 
honorable or general discharge is authorized, a discharge under other than honorable 
conditions is normally considered appropriate.

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/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 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.  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)	 AR20170007625

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