ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  21 June 2019 
DOCKET NUMBER: AR20180007262

APPLICANT REQUESTS: an upgrade to his under other than honorable conditions 
discharge and an appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States
*	DD Form 214 (Report of Separation from Active Duty)
   *	Self-authored Statement 
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 is requesting an upgrade to his discharge from the military. He was under age 
when his mother forced him into the Army because of a school fight and his reasoning 
for being absent without leave (AWOL) is because of the death of his 6 year old brother. 
His family had never experienced this kind of trauma and he needed to be home, but his 
emergency leave request was denied.

   b.	His immaturity at the age of 16 was the reason for his actions and he was also 
confined in a stockade on two separate occasions, but he never had any representation 
and the officer’s in his company were prejudice.  He was a child, not an adult, who 
came into the military to better the lives of his family and himself.

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

   a.	He enlisted in the Regular Army on 5 January 1973.
   


   b.	On 21 February 1973, he accepted non-judicial punishment (NJP), under the 
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his 
appointed place of duty.

   c.	On 11 April 1973, he accepted NJP, under the provisions of Article 15, UCMJ, for 
departing his unit in an AWOL status on 12 March 1973 and did not return to military 
control until 19 March 1973 and on 20 March 1973 he departed his unit in an AWOL 
status and did not return to military control until 2 April 1973.

   d.	On 24 September 1973, the applicant was convicted by a summary court-martial 
for on specification of departing his unit in an AWOL status on or about 18 April 1972 
and did not return to military control until 28 August 1973

e.	On 25 June 1974, court-martial charges were preferred against him.
His DD Form 458 (Charge Sheet) shows he was charged with 1 specification of AWOL 
from 5 February 1974 until 5 June 1974.

   f.	On 25 June 1974, following consultation with legal counsel, he requested 
discharge under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial 
by court-martial.  In his request for discharge, he indicated:

*	he was making this request of his own free will and he had not been 
subjected to any coercion whatsoever by any person
*	he acknowledged he understood if his discharge request was approved he 
could be deprived of many or all Army benefits, he could be ineligible for 
many or all benefits administered by the Veterans Administration
*	he acknowledged he understood he could be deprived of his rights and 
benefits as a veteran under both Federal and State laws
*	he elected not to submit a statement on his own behalf

   g.	His chain of command recommended approval of his request for discharge with 
the issuance of an undesirable discharge.

   h.	Consistent with the chain of command's recommendation, the separation 
authority approved his request for discharge under the provisions of AR 635-200, 
chapter 10, and directed the issuance of an undesirable discharge certificate and 
reduced to the lowest enlisted grade of private (E-1).

   i.	His DD Form 214 shows he was discharged on 16 July 1974, for the good of the 
service in lieu of trial by court martial with a characterization of service of under other 
than honorable conditions. It also shows he completed 7 months and 29 days of active 
service with 316 days lost.
   


4.	The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade 
of his character of service. After considering the evidence, the ADRB denied his 
request.

5.	By regulation, applicants do not have a right to a hearing before the ABCMR. The 
Director or the ABCMR may grant a formal hearing whenever justice requires

6.	By regulation, a member who has committed an offense or offenses, the punishment 
for any of which, under the Uniform Code of Military Justice and the Manual for Courts- 
Martial, United States 1969 (Revised Edition), includes a bad conduct or dishonorable 
discharge, may submit a request for discharge for the good of the Service.

7.	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 review of the application and all evidence, the Board determined there is 
insufficient evidence to grant relief. The Board carefully considered the applicant’s 
contentions and his statement, his record of service, the frequency and nature of his 
misconduct, the reason for his separation and whether clemency was warranted. The 
Board found insufficient evidence of in-service mitigation and the applicant did not 
provide character witness statements or evidence of post-service achievements in 
support of a clemency determination. The Board applied Department of Defense 
guidance for consideration of discharge upgrade requests the complete evidentiary 
record and did not find any evidence of error, injustice, or inequity.	Based upon a 
preponderance of evidence, the Board determined 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.



 X	
CHAIRPERSON
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.


ADMINISTRATIVE NOTE(S):

Not Applicable 
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) 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.

   a.	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.

   b.	The ABCMR may, in its discretion, hold a hearing or request additional evidence 
or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right 
to a hearing before the ABCMR. The Director or the ABCMR may grant a formal 
hearing whenever justice requires.
   




3.	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 provides that an honorable discharge is a separation with honor. 
Issuance of an honorable discharge certificate is predicated 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 provides 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. When a member’s service is 
characterized as general, except when discharged by reason of misconduct, unfitness, 
unsuitability, homosexuality, or security, the specific basis for such separation will be 
included in the individual’s military personnel record

   c.	Chapter 10 of that regulation provides, in pertinent part, that an individual who has 
committed an offense or offenses, the punishment for which, under the Uniform Code of 
Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), 
includes a bad conduct or dishonorable discharge, may submit a request for discharge for 
the good of the Service. The request for discharge may be submitted at any time after 
court-martial charges are preferred against him, regardless of whether the charges are 
referred to a court martial and regardless of the type of court-martial to which the charges 
may be referred. The request for discharge may be submitted at any stage in the 
processing of the charges until final action on the case by the court-martial convening 
authority.

4.	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//