ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	 

	BOARD DATE:  21 May 2019

	DOCKET NUMBER:  AR20180012113


APPLICANT REQUESTS:  The applicant requests upgrade of his undesirable 
discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored Statement
*	Five Letter/Character References
*	Army Review Boards Agency (ARBA), Case Management Division Letter to 
Applicant, dated 12 August 2013

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 submitted a DD Form 149 and a self-authored statement.  He states 
since his tenure on active duty he has and continue to work extremely hard to correct 
the errors he had as a young man.  He was proud to be a Soldier and is still proud to 
have served.  He has learned a valuable lesson since his discharge.  He has been 
working over 40 years in the health the care system.  He has been a model citizen.  He 
had mentored many kids to do the right thing in life and be responsible for their actions 
because sometimes the mistakes you make as a kid or a young man, even as an adult, 
will stay with you for life.  He would like to apologize for his actions at that time in 
Germany and asked that the Board reconsider a change in his discharge.

3.  On 5 June 1974, at the age of 18 years old, he enlisted in the Regular Army for a 
term of 3 years.  On 19 December 1974, he arrived at his permanent duty station in 
Germany.

4.  On 21 January 1975, court-martial charges were preferred against the applicant for:

*	two specifications of assaulting his superior noncommissioned officer (NCO)
*	three specifications of willfully disobeying his superior NCO
*	one specification of communicating a threat to SFC E.T., "I'm going to get you, 
you know that, M_ F_" (expletive) and "I'm going to kill him"

5.  On 30 January 1975: 

*	Additional charges were preferred against the applicant for:

*	one specification of failing to go at the time prescribed to his appointed place 
of duty
*	two specifications of being absent without authority (AWOL)
*	one specification of violating a general regulation by possessing a controlled, 
prohibited substance:  marijuana
*	one specification of stealing a rotary electric razor

*	Original charges and Additional Charges were referred to a special court-martial.

6.  The applicant voluntarily requested discharge for the good of the service in lieu of 
trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel 
Separations – Enlisted Personnel), chapter 10.  He consulted with legal counsel and 
was advised of the basis for the trial by court-martial, his available rights and the basis 
for voluntarily requesting discharge under the provision of AR 635-200, chapter 10.  The 
applicant elected not to submit a statement on his own behalf.  

7.  The applicant's chain of command recommended approval of his request and the 
appropriate separation authority approved the applicant's request directing the applicant 
be reduced to rank/grade of private one(PV1)/E-1 and he be issued an Undesirable 
Discharge Certificate.  

8.  On 14 March 1975, he was discharged accordingly.  His service was characterized 
as under other than honorable conditions with an Undesirable Discharge Certificate.  He 
completed 9 months and 10 days of net active service this period, with 2 months and 
26 days of Foreign Service.  His DD Form 214 (Report of Separation from Active Duty) 
shows he was awarded or authorized the National Defense Service Medal and M-16 
Marksman Marksmanship Qualification Badge.

9.  In 1975, the applicant petitioned the Army Discharge Review Board (ADRB) to 
upgrade his discharge.  The ADRB denied his petition citing it has determined that the 
applicant was properly discharged.  Again in 1978, the applicate petitioned the ADRB to 
upgrade his discharge and again the ADRB denied his application for the same reason.

10.  The applicant provided:

   a.	Five letters/character references attesting to the applicant’s character as a 
coworker, a friend, a citizen, and an employee.

   b.	Case Management Division letter informing the applicant that his case must be 
directed to the ABCMR because the ADRB does not have the authority to process 
applications after 15 years from the date of discharge.

11.  The applicant states since his tenue on active duty he has and continue to work 
extremely hard to correct errors he has made as a young man.  He was proud to be a 
Soldier and is still proud to have served.  His record shows he enlisted at the age of 
18 years old and 5 charges of 11 specifications were preferred against him under the 
Uniform Code of Military Justice.  He completed 9 months of his 36 months contractual 
obligation.

12.  AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by 
court martial.  A member may be awarded an honorable or general discharge, if during 
the current enlistment period of obligated service he has been awarded a personal 
decoration or if warranted by the particular circumstances of a specific case.

13.  In reaching its determination, the Board can consider the applicant’s petition and 
service record in accordance with the published equity, injustice, or clemency 
determination guidance.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, supporting documents, 
evidence in the records and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered the applicant’s statement, the length of his 
service, the frequency and nature of his misconduct, the reason for his separation and 
whether to apply clemency.  The Board found no in-service mitigation for his misconduct 
and the applicant provided none.  The Board considered the applicant’s stated post-
service conduct and the letters of reference he provided but found them insufficient 
support a clemency determination, based on the serious nature of the misconduct.  
Based on a preponderance of evidence, the Board determined that the character of 
service the applicant received at separation was not in error or unjust.

2.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted.



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.


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) 635-200 (Personnel Separations – Enlisted Personnel), in 
effect at the time, set forth the basic authority for the administrative separation of 
enlisted personnel, it states:

	a.  A Chapter 10 (Discharge for the Good of the Service) is applicable to members 
who had committed an offense or offenses for which the authorized punishment 
included a bad conduct or dishonorable discharge could submit a request for discharge 
for the good of the service.  The request could be submitted at any time after the 
charges had been preferred.  Although an honorable or general discharge was 
authorized, an under other than honorable conditions discharge was normally 
considered appropriate.  

	b.  An honorable discharge was a separation with honor and entitled the recipient to 
benefits provided by law.  The honorable characterization is predicated upon proper 
military behavior and proficient performance of duty during the member's current 
enlistment or period of obligated service with due consideration for the member's age, 
length of service, grade, and general aptitude.

	c.  A general discharge was a separation from the Army under honorable conditions.  
When authorized, it was issued to a Soldier whose military record was satisfactory but 
not sufficiently meritorious to warrant an honorable discharge.

	d.  When a member is to be issued a discharge under other than honorable 
conditions, the convening authority will direct his immediate reduction to the lowest 
enlisted grade.

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 the applicant.

ABCMR Record of Proceedings (cont)	 AR20180012113

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