ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  19 July 2019

	DOCKET NUMBER:  AR20170012836


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge). 

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 still feels racial injustice of Major X__ when he told him to 
take a discharge or go to prison.  He is currently in college working on a degree but he 
would like to make things from the past right for today.  He states he was a scared kid 
and his commanding officer used to use racial slurs and scream at him because he was 
a scared little kid thousands of miles away from home for the first time in his life.  He 
states this led him to smoke cigarettes for the first time and experiment with drugs trying 
to dull the pain of failure.

3.  Review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 10 September 1975.

	b.  His record is void of the DA Form 2627-1 (Record of Proceedings Under Article 
15, Uniform Code of Military Justice (UCMJ)); however, other documents show he 
accepted nonjudicial punishment (NJP) on/for:

*	13 April 1976, without authority absenting himself from his place of duty
*	27 April 1976, willfully disobeying a lawful order; his punishment included in 
part, reduction to E-1

	c.  On 18 June 1976, he received a bar to reenlistment for his previous NJP and he 
lacked the ability to meet self-discipline standards.

	d.  On 9 November 1976, court-martial charges were preferred against the applicant.  
His DD Form 458 (Charge Sheet) shows he was charged with the following:

*	one specification of possession of a controlled substance on 9 October 1976
*	one specification of without authority, failing to go at time prescribed to his 
appointed place of duty on 22 October 1976
*	two specifications of violating liberty pass policy on 22 October 1976 and
24 October 1976
*	one specification of theft of one five (5) ton shock absorber and one 
five/quarter ton shock absorber on 23 September 1976
*	one specification of theft of a wallet from another Soldier by force and 
violence on 21 September 1976

	e.  On 11 November 1976, the applicant consulted with counsel who advised him of 
the contemplated trial by a court-martial and of the rights that were available to him.  
Following this consult, the applicant requested discharge for the good of the service, in 
lieu of trial by court-martial, under the provisions of Chapter 10, Army Regulation (AR) 
635-200 (Personnel Separations - Enlisted Personnel).  The applicant stated prior to 
completing the form he had been afforded the opportunity to consult with legal counsel.  
In his request, he acknowledged:  

*	he was advised of the basis for the contemplated separation action under 
provisions of chapter 10, AR 635-200
*	he was advised if his request for discharge was accepted he may be 
discharged under other than honorable conditions and furnished an 
undesirable discharge certificate
*	he acknowledged he understood 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 (VA) and he 
could be deprived of his rights and benefits as a veteran under both Federal 
and State laws
*	he was advised that he could expect to encounter substantial prejudice in 
civilian life by reason of an undesirable discharge
*	he was advised once the request was submitted, it may be withdrawn only as 
provided in paragraph 10-4, AR 635-200
*	he elected not to submit a statement on his own behalf

	f.  On 15 November 1976, the separation authority approved the applicant's request 
for discharge and ordered his service be characterized as under other than honorable 
conditions and he be issued an Undesirable Discharge Certificate (DD Form 258A), and 
reduced to the lowest enlisted grade of E-1 (if applicable). 
	g.  On 24 November 1976, the applicant was discharged from active duty.  His 
DD Form 214 (Report of Separation from Active Duty), shows he was discharged under 
the provisions of AR 635-200 chapter 10 in the rank of private/E-1 with and under other 
than honorable conditions characterization of service.  He completed 1 year, 2 months, 
and 12 days of active service and 3 days of lost time.  He was awarded or authorized 
the Expert Qualification Badge (Rifle).  

	h.  On 12 September 1978, the Army Discharge Review Board (ADRB) reviewed the 
applicant’s case and determined he was properly discharged.  The ADRB denied his 
request for upgrade.

4.  By regulation, discharges under the provision of AR 635-200, chapter 10 (Discharge 
for the Good of the Service) are voluntary requests for discharge in lieu of trial by court-
martial.  The issuance of a discharge under the provisions of chapter 10, AR 635-200 
required the applicant to have voluntarily, willingly, and in writing, requested discharge 
from the Army in lieu of trial by a court-martial.

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 reviewing the application and all supporting documents, to include the DoD 
guidance on liberal consideration when reviewing discharge upgrade requests, the 
Board determined that relief was not warranted.  Based upon the short term of 
honorable service completed prior to a pattern of misconduct which included some 
misconduct of a criminal nature, the Board concluded that the characterization of 
service received at the time of discharge was appropriate.

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, 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) 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 begins its consideration of each case with the presumption of 
administrative regularity, which is that what the Army did was correct.  The ABCMR is 
not an investigative body and decides cases based on the evidence that is presented in 
the military records provided and the independent evidence submitted with the 
application.  The applicant has the burden of proving an error or injustice by a 
preponderance of the evidence.  

3.  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 1-9d (Honorable discharge) states an honorable discharge is a 
separation with honor.  The honorable characterization is appropriate when the quality 
of the Soldier’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.	Paragraph 1-9e (General discharge) states 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 states that a Soldier who has committed an offense or offenses, the 
punishment for which, under the Uniform Code of Military Justice and the Manual for 
Courts-Martial, United States, 1969 includes a bad conduct or dishonorable discharge, 
may submit a request for discharge for the good of the service.  The discharge request 
may be submitted after court-martial charges are preferred against the Soldier or where 
required, after referral, until final action by the court-martial convening authority.  A 
discharge under other than honorable conditions normally is appropriate for a Soldier 
who is discharged for the good of the service.  However, the separation authority may 
direct a general discharge if such is merited by the Soldier’s overall record during the 
current enlistment.

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 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)	 AR20170012836

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