ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20180008476


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)

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 terrorized by another Soldier and his life was 
threatened.  He wanted to be a heavy vehicle operator, but was given the military 
occupation specialty of 11B (Infantryman).  

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

	a.  He enlisted in the Regular Army on 18 December 1972.

	b.  The applicant’s service record is void of the circumstances and separation 
documents that led to his discharge; however, it does have the separation authority’s 
signed approval of a request for a discharge for the good of the service in lieu of trail by 
court-martial, dated 8 August 1973, in conjunction with the undesirable discharge that 
was issued.  He was also reduced to rank/grade of Private/E-1.

	c.  His DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge) shows that he was discharged on 14 August 1973, under the provisions of 
Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by 
court-martial, and issued an under other than honorable discharge.  It also shows he 
had 4 months and 22 days of net active service with no lost time.  He was awarded or 
authorized the National Defense Service Medal and the Marksmanship Qualification 
Badge with Rifle Bar (M-16).
4.  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.  

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 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 a documentary review of the applicant’s record, the Board found 
insufficient evidence of an error or injustice which would warrant making a change to the 
applicant’s characterization of service.

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 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.

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 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)	 AR20180008476

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