ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	
	BOARD DATE:  23 August 2019

	DOCKET NUMBER:  AR20180004177


APPLICANT REQUESTS:  an upgrade of his dishonorable discharge to an honorable

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the 
United States)

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 was discriminated against by a white sergeant and he was 
treated unfairly, because he was an African American Soldier.

3.  The applicant's military records are not available to the Board for review.  A fire 
destroyed approximately 18 million service members’ records at the National Personnel 
Records Center in 1973.  It is believed his records were lost or destroyed in that fire.  
However, there were sufficient documents remaining in a reconstructed record to 
conduct a fair and impartial review of this case.  

4.  He served in the 6th Armed Division and Fort Leonard wood Missouri.  The applicant 
only remembers of being treated unfairly and he felt he never had the chance to prove 
he could be a great Soldier.

5.  The applicant’s available record contains a Special Orders Number 134, issued by 
the U.S. Army Personnel Center, Fort Leonard Wood, MO on 9 June 1955, announcing 
his discharge under the provisions of Army Regulation (AR) 635-208 (Personnel 
Separations – Discharge – Unfitness and Unsuitability), with Separation Program 
Number Code 438 (Dishonorable).  The orders shows his date of discharge as 13 June 
1955.  A Certification of Military Service, issued on 24 April 2000, showing he served in 
the Regular Army from 9 February 1952 until his discharge on 13 June 1955.  The 
certificate also show his service was Dishonorable.

6.  By regulation (AR 635-208), individuals will be discharged by reason of unfitness 
with an undesirable discharge, unless the particular circumstances in a given case 
warrant a general or honorable discharge.

7.  In reaching its determination, the Board can consider the applicants’ petition in his 
service record in accordance with published equity, injustice, or clemency determination 
guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not 
warranted.  The applicant’s contentions were carefully considered.  The Board applied 
Department of Defense standards of liberal consideration to the complete evidentiary 
record and did not find any evidence of error, injustice, or inequity.  He did not provide 
character witness statements or evidence of post-service achievements for the Board to 
consider.  Based upon the documentary evidence provided by the applicant and found 
within the military service record, as well as the failure to accept responsibility and show 
remorse for the events leading to his separation, the Board agreed that the applicant's 
discharge characterization was warranted as a result of the misconduct.

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) 635-208 (Personnel Separations – Discharge – Unfitness and 
Unsuitability), in effect at the time, established policy and provided procedures and 
guidance for the prompt elimination of enlisted personnel who were determined to be 
unfit for further military service.  Individuals would be discharged by reason of unfitness 
with an Undesirable Discharge Certificate, unless the particular circumstances in a 
given case warranted a general or honorable discharge.

3.  AR 635-5 (Administrative Separation Procedures and Forms), in effect at the time, 
showed that Separation Program Number 438 was authorized for separations under the 
provisions of AR 635-208 with the following associated narrative reason of 
“Dishonorable.” 

4.  AR 635-200 (Active Duty Enlisted Separations), currently in effect, provides the 
policy and procedures for the separation of enlisted personnel.  The regulation states 
in:

a.	Paragraph 3-7a (Honorable discharge) – 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 3-7b (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.

5.  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)	 AR20180004177

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