ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  1 July 2019

	DOCKET NUMBER:  AR20170016037


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

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Enlisted Efficiency Report, dated 5 September 1974
* Letter of Support (4)

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:

	a.  He was accused, along with other black soldiers, of conspiring to harm a fellow white soldier.  He explains he informed his commanding officer, who then said “he was going to get the (*racist and derogatory language) out of the military.  He believes that in retaliation against him, the commanding officer initiated general court-martial procedures against him.

	b.  He was informed to either plead guilty, go to jail, or get out of the Army.  He elected to get out of the Army.  He believes the court-martial charges were racially motivated, unjust, and he did not receive adequate representation at the court-martial.

3.  The applicant provides:

	a.  An Enlisted Efficiency Report, dated 5 September 1974, which states the applicant’s duty performance was outstanding.  Also, how he contributed greatly to the special weapons inspections.

	b.  A letter of support from his pastor (XX), dated 21 June 2017, which states the applicant exemplifies the spirit of excellence, commitment and integrity.  He adds the applicant’s character and behavior exemplifies a steadfast Christian and he is a tremendous blessing to the church (see attached).

	c.  A letter of support from the Office of the Sheriff (XX), dated 22 June 2017, which states the applicant has a long history of service to the Chesapeake community (see attached).

	d.  A letter of support from a friend (XX), dated 29 June 2017, which states he has known the applicant for many years and has only known him to have the utmost integrity and displays unquestionable character.

	e.  A letter of support from a former co-worker (XX), dated 6 July 2017, which states he worked with the applicant for thirty years.  He notes the applicant was a General Foreman who oversaw and mentored 40 employees.  He was flexible, professional, and courteous and company leadership valued his advice and counsel (see attached).

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

	a.  He enlisted in the Regular Army on 20 July 1972.  

	b.  Special court-martial charges were preferred on 28 January 1975.  His DD Form 458 (Charge Sheet) indicates he was charged with:

* one specification of having a controlled substance, Mandrax
* one specification of unlawfully striking another soldier in the stomach and back with his fists

	c.  He consulted with legal counsel on 10 March 1975 and did not make statements on his own behalf.  However, his leadership submitted statements attesting to his outstanding military performance (see attached).  Subsequently, he requested discharge under provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge For the Good of the Service).  He acknowledged:

* if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he may ineligible for many or all benefits administered by the Veterans Administration and he may be deprived of rights and benefits as a Veteran under both Federal and State laws
* he can expect to encounter substantial prejudice in civilian life because of the Other Than Honorable Discharge

	d.  Due to his fine past duty performance, his chain of command did not recommend an Undesirable Discharge, however, they recommended a General Discharge.

	e.  On 18 March 1975, the separation authority approved the applicant’s request for separation under the provisions of chapter 10, AR 635-200, Chapter 10 (Discharge For the Good of the Service), in effect at the time.  He was reduced to the grade of E1 and furnished an Undesirable Discharge Certificate.

	f.  His DD Form 214 shows he was discharged on 21 April 1975 with an under other than honorable conditions characterization of service.  He completed 2 years, 7 months, and 20 days of active service.

5.  By regulation, a member who has committed an offense or offenses, which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  A discharge under other than honorable conditions normally is appropriate for a soldier discharged for the good of the service.

6.  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 warranted.  Based upon the misconduct and the submitted letter of character evidence which show that the applicant has grown from the events leading to his separation, the Board recommended upgrading the characterization of service to Under Honorable Conditions (General).

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 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, provides for the separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states that an honorable discharge is a separation with honor.  The Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 3-7b (General Discharge) states that a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 of this regulation provides procedures for separating soldiers who have committed an offense or offenses, UCMJ includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  An under other than honorable discharge certificate is normally appropriate for a member who is discharged for the good of the service.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20170016037


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