ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  8 July 2019

	DOCKET NUMBER:  AR20180005380


APPLICANT REQUESTS:  upgrade under other than honorable conditions discharge.

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

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 the crime that he was convicted of was as an accessory to a 
crime that occurred while riding in a vehicle operated by family members.  He was not 
an active participant in the crime.  It has been more than 41 years since this event 
occurred.  He asks this injustice be correct and his discharge upgraded.  

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

	a.  He was inducted into the Army of the United States on 14 April 1969.

	b.  DA Form 20 (Enlisted Qualification Record) shows that he was assigned to 
Alaska on 15 October 1969.  

	c.  He was arrested in New York on or about 12 March 1971 while on leave for 
robbery.  He was sentenced to one year of imprisonment.  

	d.  On 22 April 1971, court-martial charges were preferred against him.  His 
DD Form 458 (Charge Sheet) indicates he was charged with one specifications of 
absence without leave from 14 February 1970 to 22 April 1971.

	e.  After consulting with legal counsel, he 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 understood that if his request for discharge was accepted he could be 
discharged under other than honorable conditions
*	he would be deprived of many or all Army benefits
*	he may be ineligible for many or all benefits administrated by the Veterans 
Administration
*	he may be deprived of his rights and benefits of a Veteran under both Federal 
and State laws
*	he may expect to encounter substantial prejudice in civilian life by reason of 
an undesirable discharge

	f.  A self-authored statement submitted with his request for discharge for the good of 
the service states he signed out of Company B, 6th Battalion, 9th Infantry on about 
31 January 1970 for 13 days of leave.  When he arrived home he found out that his 
family was falling apart because of the lack of support.  His wife said she was going to 
leave him.  He did not want this to happen because he loves his kids.  He got a job and 
went to work to support his family.  On 10 June 1970, he was arrested on robbery and 
sentenced to one year imprisonment.  He was released on 21 April 1971.  He told he 
could support his family better by being out of the service.  

	g.  On 1 June 1971, consistent with the chain of command recommendations, the 
separation authority approved the discharge recommendation for immediate separation.  
The applicant would be discharged under the provisions of AR 635-200, chapter 10, 
furnished an Undesirable Discharge Certificate.  

	h.  On 12 June 1971, he was discharged from active duty under the provisions of AR 
635-200, chapter 10, and issued a under other than honorable conditions discharge.  
His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
reflects that the completed 11 months and 22 days of active service with 432 days of 
lost time from 14 February 1970 to 22 April 1971.  It also shows that he was award or 
authorized the National Defense Service Medal.

	i.  On 19 August 1982, the Army Discharge Review Board determined he was 
properly discharged.  His request for a change in the type and nature of his discharge 
was denied.  

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.  

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 in the record, as well as the lengthy AWOL offense, 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) 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 (Discharge for the Good of the Service) 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 (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 the 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, 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 upgrade service characterization.

ABCMR Record of Proceedings (cont)	 AR20180005380

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