ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	BOARD DATE:  11 October 2019

	DOCKET NUMBER:  AR20170014856


APPLICANT REQUESTS: in effect, a reconsideration of his previous request to correct 
his records by upgrading his under other than honorable (UOTH) conditions discharge 
for the period ending 24 March 1969.

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

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the Army Board for Correction of 
Military Records (ABCMR) in Docket Number 75-0590 on 26 February 1975.

2.  The applicant states he respectfully claims that an error exists due to the inequity in 
the leveraging of the punishment in the incident that occurred on or about 23 May 1968.  
The incident involved more than one individual (one of whom happened to be of the 8 
blacks in headquarters company, and the other white), but only the black Soldier was 
arrested and charged, while the individual inciting the incident was never charged.

a.  Due to the racial climate and make-up of the company, the other black Soldiers
as well as anyone else “willing” to testify were afraid to do so, because they did not want 
to be known as “nigger lover’s.”  Staff Sergeant (SSG) D_, a supervisor, was transferred 
to prevent his testimony.  He was moved into the orderly room with a .45 automatic 
pistol to protect himself at night after talk of lynching and castration started by Private 
(PVT) J_ and his friends.  His commanding officer of the 525 Quartermaster Company 
was also transferred after he started the process to transfer the applicant out of the unit. 

b.  The new commander, Captain (CPT) B_, reopened the case and recommended
a General Court-Martial.  Prior to the incident, he had never been in any trouble in the 
military, making the 450 Club and Outstanding Trainee” during basic training, or in the 
civilian community.  He states, “In fact, if I was such a threat to the unit, why would the 
commanding officer give me a weapon and trust me to use it wisely?”

c.  In all fairness, if PVT J_ had gotten the upper hand instead, there would be no
issue – just a funeral – MINE!!!  In the interest of justice, he wants the Board to consider 
the application because injustice is not equal and that is not the way the U.S. Armed 
Forces operates today. 

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

a.  He was inducted into the Army of the United States on 6 June 1967, and was
honorably discharged on 8 June 1967 for an immediate reenlistment.

b.  He enlisted in the Regular Army for 3 years on 9 June 1967.

c.  General Court-Martial Order # 25, dated 15 July 1968, shows he was tried and
found guilty of the specification that he did, at Cam Ranh Bay, republic of Vietnam, on 
or about 23 March 1968, commit an assault upon Private First Class (PFC/E-3) J_ E. J_ 
by striking him on the head with an M-16 rifle and did thereby intentionally inflict 
grievous bodily harm upon him, to wit, a fractured skull.  He was sentenced to be 
discharged from the service with a bad conduct discharge, to forfeit all pay and 
allowances, to be confined at hard labor for 2 years, and to be reduced to the grade of 
private/E-1.  The sentence was adjudged on 22 May 1968.  The sentence was 
approved on 15 July 1968, and the record of trial was forwarded to The Judge Advocate 
General of the Army for review by a board of review.  The applicant was confined to the 
U.S. Disciplinary Barracks, Fort Leavenworth, Kansas pending completion of the 
appellate review.

d.  On 6 November 1968, the Board of Review found the findings of guilty and
sentence as approved by proper authority correct in law and fact, and having 
determined, on the basis of the entire record, that the findings of guilty and only so 
much of the sentence as provides for the bad conduct discharge, total forfeitures, 
confinement at hard labor for 18 months, and reduction to the grade of private 
(PVT/E-1) should be approved. The same and the modified were affirmed.  

e.  General Court-Martial Order # 157, dated 13 February 1969, shows the sentence
as provides for a bad  conduct discharge, forfeiture of all pay and allowances, 
confinement at hard labor for 18 months, and reduction  to the grade of private 
(PVT/E-1), adjudged on 22 May 1968, was affirmed, and the sentence as modified was 
duly executed. 

f.   On 14 February 1969, the U.S. Court of Military Appeals denied the applicant’s
petition for a grant of review the case.

g.  Special Orders # 56, dated 21 March 1969, published  by the Headquarters, U.S.
Disciplinary Barracks, Fort Leavenworth, KS, shows the applicant discharge type as 
UOHC (Under Other Than Honorable Conditons) – DD Form 259A, by reason of 
conviction by general court-martial.

h.  His DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge) for the period ending 24 March 1969 shows in:

*	Item 11a (Type of transfer or discharge) Discharged
*	Item 11d (Effective date) 24 March 1969
*	Item 13a (Character of service) Under conditions other than honorable
*	Item 13b (Type of certificate issued) DD Form 259A
*	Item 30 (Remarks) GCMO

i.  On 26 February 1975, the ABCMR in Docket Number 75-0590,
determined there was insufficient evidence presented to indicate a probable material 
error or injustice, and denied his application request for his bad conduct discharge to be 
upgraded to an honorable discharge.

4.  Army Regulation AR 635-200, sets policies, standards, and procedures to ensure the 
readiness and competency of the force while providing for the orderly administrative 
separation of Soldiers for a variety of reasons.  An Honorable Discharge is a separation 
with honor.  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.  An enlisted person will be discharged 
with a bad conduct discharge pursuant to an approved sentence of a general or special 
court-martial imposing a bad conduct discharge.

5.  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.  

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 relief was warranted.  Based upon the passage of time and the 
misconduct leading to the applicant’s separation being an isolated incident, the Board 
concluded that granting clemency by upgrading the characterization of service to Under 
Honorable Conditions (General) was appropriate.




BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:X	:X	:X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a 
recommendation for relief.  As a result, the Board recommends that all Department of 
the Army records of the individual concerned be corrected by reissuing the applicant a 
DD Form 214 showing his characterization of service as Under Honorable Conditions 
(General).
	  
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 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 635-200 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.

	a.  Paragraph 11-9d (Honorable Discharge) an honorable discharge is a separation 
with honor.  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.  Paragraph 1-9e (General Discharge) 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 11 (Dishonorable and Bad Conduct Discharge) shows an enlisted person
will be discharged with a bad conduct discharge pursuant to an approved sentence of a 
general or special court-martial imposing a bad conduct discharge.  An enlisted person 
discharged with a bad conduct discharge will be given a Bad Conduct Discharge 
Certificate (DD Form 259A). 

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.

NOTHING FOLLOWS


ABCMR Record of Proceedings (cont)	 AR20170014856

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