ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20180003828   


APPLICANT REQUESTS: reconsideration of his earlier request for an upgrade of his 
under other than honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Note

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 AR20120019053 on 4 January 2013.

2.  The applicant states that he want to continue to get at the Department of Veterans 
Affairs hospital.  He also states that he would not advise African-Americans be allowed 
to enlist in the armed forces. 

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

a.	He enlisted in the Regular Army on 16 October 1978.

	b.  Court-martial charges were preferred on 17 September 1979.  His DD Form 458 
(Charge Sheet) indicates he was charged with three specifications of forcible oral and 
anal sodomy on or about 21 July 1979.

	c.  The applicant’s trial was scheduled for 17 October 1979, but he escaped from 
confinement on 16 October 1979.  He was subsequently absent without leave from 
17 October 1979 to 22 December 1980.

	d.  During the applicant's last period of AWOL from 17 October 1979 through 
22 December 1980, he was arrested by civil authorities in the District of Columbia on 
12 March 1980 and charged with first degree burglary, assault, and destruction of 
property. Found not guilty of all charges by reason of insanity, he was committed by 
court order to St. Elizabeth's Hospital, Washington, D.C.

	e.  He consulted with legal counsel on 17 February 1982, and subsequently 
requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10, (Discharge for the Good of the Service).  
He acknowledged:

*	maximum punishment
*	he was guilty of the charge(s) against him or of a lesser included offense
*	he does not desire further rehabilitation or desire further military service
*	if his request was accepted, he may be discharged under other than 
honorable conditions and furnished an Under Other Than Honorable 
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 may expect to encounter substantial prejudice in civilian life because of an 
undesirable discharge

	f.  On 3 March 1982, consistent with the chain of command recommendations, the 
separation authority approved the applicant’s request for discharge under the provisions 
of chapter 10, AR 635-200.  He directed a discharge with Under Other Than Honorable 
Conditions.

	g.  On 5 March 1982, he was discharged from active duty under the provisions of 
chapter 10, AR 635-200 with an under other than honorable conditions characterization 
of service.   His DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows he completed 5 months and 28 days of active service, with 2 years and 10 
months of lost time. 

4.  By regulation, an individual who has committed an offense or offenses, the 
punishment for which, includes a bad conduct or dishonorable discharge, may submit a 
request for discharge for the good of the service.  An Undesirable Discharge Certificate 
normally is appropriate for a member who is discharged for the good of the service, in 
lieu of trial by 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 serious, criminal 
nature of the misconduct which led to the applicant’s separation, 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 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.  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 1-9e (General Discharge) states 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 states an individual who has committed an offense 
or offenses, the punishment for which, includes a bad conduct or dishonorable 
discharge, may submit a request for discharge for the good of the service.  An 
Undesirable Discharge Certificate will normally be furnished an individual 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)	 AR20180003828

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